| N.Y. App. Div. | Oct 1, 2004
Appeal from a judgment of the Oneida County Court (Bariy M. Donalty, J.), rendered December 19, 2001. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, attempted robbery in the first degree (four counts) and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25 [3]), defendant contends that his conviction is not supported by legally sufficient evidence. Defendant’s general motion to dismiss the indictment at the close of the People’s case is insufficient to preserve that contention for our review (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, we conclude that the evidence is legally sufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant also failed to preserve for our review his contention that the People’s expert usurped the function of the jury (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Pine, Scudder, Gorski and Lawton, JJ.