People v. Santos-Mispas

38 A.D.3d 923, 831 N.Y.S.2d 344

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 2007
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered July 30, 2004, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that his justification defense was not disproven beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Johnson, 302 AD2d 539 [2003]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to disprove the defense of justification and to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The defendant’s claim that the court considered improper factors in imposing sentence is also unpreserved for appellate review (see CPL 470.05 [2]; People v Ponder, 1 AD3d 616 [2003]). In any event, the claim is without merit (see People v Harrison, 188 AD2d 374, 375 [1992], affd 82 NY2d 693 [1993]; see generally People v Notey, 72 AD2d 279, 282-283 [1980]). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contention is without merit. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.