People v. Hernandez

252 A.D.2d 531, 675 N.Y.S.2d 292, 1998 N.Y. App. Div. LEXIS 8254

Opinion

—Appeal by the defendant from a judgment of the County Court, Nassau County (Kowtna, J.), rendered August 1, 1997, as amended August 11, 1997, convicting him of arson in the third degree and arson in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment, as amended, is affirmed.

The defendant’s contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), 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 defendant contends that the, court erred by sentencing him on August 1, 1997, upon his conviction of arson in the fourth degree, as a second felony offender, to an indeterminate term of imprisonment of 3V2 to 7 years, because 2 to 4 years is the maximum sentence allowed (see, Penal Law §§ 150.05, 70.06 [3] [e]). This contention, however, is academic in light of the amended sentence, rendered August 11, 1997, whereby the sentence imposed on that conviction was changed to 2 to 4 years.

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Pizzuto, J. P., Santucci, Altman and Luciano, JJ., concur.