PEOPLE v. MONTGOMERY (2003)

 On appeal from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (former § 265.03[2] ), defendant contends that Supreme Court erred in denying his motion to dismiss based on the legal insufficiency of the evidence at trial.   Defendant waived that contention by presenting evidence after the court's implicit denial of his motion to dismiss at the close of the People's case and failing to renew his motion at the close of his case (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Matuszek, 300 A.D.2d 1131, 752 N.Y.S.2d 774).   In any event, the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The People presented evidence that defendant was the last person seen with the victim, that the victim's blood was found in defendant's home, and that defendant attempted to clean up the victim's blood.   The verdict is not against the weight of the evidence (see id.).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: