PEOPLE v. NELSON (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunlop, J.), rendered December 20, 2005, convicting him of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (O'Dwyer, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Ayala, 15 A.D.3d 496, 496, 789 N.Y.S.2d 439;  People v. Montalbo, 254 A.D.2d 504, 505, 681 N.Y.S.2d 547).   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 of both grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power (see CPL 470.15 [5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 At the suppression hearing, the People established probable cause for the arrest of the defendant (see People v. Torres, 47 A.D.3d 851, 850 N.Y.S.2d 529, lv. denied 10 N.Y.3d 817, 857 N.Y.S.2d 50, 886 N.E.2d 815).   Thus, the evidence obtained as a result of the arrest was not the fruit of an unlawful arrest, and suppression on that ground was properly denied (id.).

 Finally, the defendant's contention that his due process rights were violated by the failure of the police to videotape his interrogation is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, the contention is without merit (see People v. Rosas, 30 A.D.3d 545, 818 N.Y.S.2d 126, affd. 8 N.Y.3d 493, 836 N.Y.S.2d 518, 868 N.E.2d 199).