People v. Kearney

Jan 17, 2006
Versions:25 A.D.3d 622
806 N.Y.S.2d 885

Ordered that the judgment is affirmed.

Since the defendant affirmatively requested that the trier of fact consider manslaughter in the first degree as a lesser-included offense in this case, he should not now be heard to complain that there was insufficient evidence in the record to support a conviction of that charge (see People v Ferguson, 178 AD2d 149 [1991]; see generally People v Walden, 227 AD2d 887 [1996]; People v Alvarado, 213 AD2d 1013 [1995]). Additionally, the defendant‘s current challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since he failed to advance his present arguments as a basis for dismissal in the trial court (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]; People v Udzinski, 146 AD2d 245 [1989]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find the evidence 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‘s remaining contention is unpreserved for appellate review (see People v Lumpkins, 11 AD3d 563 [2004]) and, in any event, is without merit (see People v Staples, 19 AD3d 1096 [2005]; People v Butler, 17 AD3d 379 [2005]; People v Davis, 277 AD2d 248 [2000]; People v Dennis, 210 AD2d 803 [1994]). Schmidt, J.P., Mastro, Spolzino and Covello, JJ., concur.