People v. Drayton

Dec 19, 2005
Versions:24 A.D.3d 686
808 N.Y.S.2d 383

Ordered that the judgment is affirmed.

The defendant‘s contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]). In any event, viewing the evidence in a light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish his 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‘s contention that the trial court erred in refusing to give a missing witness charge for his accomplice is without merit (see People v Gonzalez, 68 NY2d 424 [1986]; People v Wright, 2 AD3d 546 [2003]). In any event, the defendant failed to meet his burden of establishing that his accomplice was under the control of the prosecution (see People v Gonzalez, supra at 427).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Cozier, J.P., Krausman, Goldstein and Skelos, JJ., concur.