People v. Burris

309 A.D.2d 872, 766 N.Y.S.2d 49

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 2003
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered February 28, 2001, convicting him of murder in the second degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the defendant, we find that no reasonable view of the evidence warranted a jury instruction on the affirmative defense to felony murder (see Penal Law § 125.25 [3]; People v Watts, 57 NY2d 299 [1982]; People v McNeely, 222 AD2d 611 [1995]).

The defendant’s challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are unpreserved for appellate review. Altman, J.P., Krausman, Goldstein and Luciano, JJ., concur.