People v. Tucker

208 A.D.2d 575, 616 N.Y.S.2d 1008

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered October 23, 1990, convicting him of murder in the second degree (two counts), robbery in the first degree, and assault in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s motion for a trial order of dismissal was not specific enough to preserve the issue of legal sufficiency for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245, 250). In any event, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620), the circumstantial evidence of the defendant’s guilt naturally flowed from the facts proved, was consistent with them, and excluded to a moral certainty every reasonable hypothesis of innocence (see, People v Benzinger, 36 NY2d 29, 32; People v Tedesco, 143 AD2d 155). In addition, upon the exercise of our factual review power, we find that the jury verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

Further, under no reasonable view of the evidence could the jury find that the defendant would be able to establish an affirmative defense to the charge of felony murder under Penal Law § 125.25 (3). Therefore, the trial court did not err when it denied its request for such a charge (see, People v Butts, 72 NY2d 746).

The defendant’s remaining contentions are without merit. Rosenblatt, J. P., O’Brien, Ritter and Florio, JJ., concur.