PEOPLE v. BROWN (2005)

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered December 9, 2002, convicting him of assault in the second degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his argument that the prosecution did not prove his guilt of assault in the second degree beyond a reasonable doubt (see People v. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that 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 contention that the verdict is repugnant is also unpreserved for appellate review (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271;  People v. Luke, 279 A.D.2d 534, 535, 719 N.Y.S.2d 122) and, in any event, is without merit (see People v. Goodfriend, 64 N.Y.2d 695, 697, 485 N.Y.S.2d 519, 474 N.E.2d 1187;  People v. Haymes, 34 N.Y.2d 639, 640, 355 N.Y.S.2d 376, 311 N.E.2d 509, cert. denied 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279;  People v. Menner, 2 A.D.3d 650, 651, 769 N.Y.S.2d 569;  People v. Holloway, 253 A.D.2d 767, 768, 677 N.Y.S.2d 489;  People v. Hudson, 163 A.D.2d 418, 559 N.Y.S.2d 661).

The admission into evidence of a knife despite the lack of any evidence connecting the defendant to it was harmless in view of his acquittal of the charge of criminal possession of a weapon in the fourth degree.

The defendant's remaining contentions are unpreserved for appellate review.