596 N.Y.S.2d 727 | N.Y. App. Div. | 1993
—Appeal by the defendant (1) from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered December 21, 1988, convicting him of murder in the second degree and conspiracy in the second degree, upon a jury verdict, and imposing sentence, and (2) by permission, from an order of the same court, dated September 11, 1991, which denied his motion pursuant to CPL article 440 to vacate the judgment of conviction.
Ordered that the judgment and order are affirmed.
On appeal, the defendant argues, inter alia, that the conspiracy count of his indictment was defective because all of the overt acts listed in support of that count occurred prior to any agreement between the defendant and the codefendant. We disagree.
We note that the defendant’s claim is unpreserved for appellate review since he failed to properly raise this claim in a pretrial motion to dismiss the indictment (see, People v Iannone, 45 NY2d 589; People v Di Noia, 105 AD2d 799; People v Byrdsong, 133 AD2d 164). In any event, despite the defendant’s contention, we find that the indictment alleged an overt act which he committed in furtherance of the conspiracy (see, Penal Law § 105.20; People v Bongarzone, 116 AD2d 164).
We have examined the defendant’s remaining contentions and find that they are without merit. Balletta, J. P., Eiber, Ritter and Santucci, JJ., concur.