PEOPLE v. MERCHANT (2004)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered April 30, 2002, convicting him of murder in the second degree, manslaughter in the second degree, robbery in the first degree (two counts), robbery in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence of his guilt is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   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 it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt, based upon an acting-in-concert theory (see People v. Canty, 305 A.D.2d 612, 759 N.Y.S.2d 359).   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 Supreme Court properly declined the defendant's request for a jury instruction regarding the affirmative defense to felony murder under Penal Law § 125.25(3).   The defendant's post-arrest statements revealed that he was a knowing participant in the robbery that his companions intended to commit, and that one of them was armed with a baseball bat to be used if the victim resisted (see People v. Brown, 174 A.D.2d 750, 571 N.Y.S.2d 777;  People v. Pearson, 118 A.D.2d 737, 500 N.Y.S.2d 72).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.