PEOPLE v. DRAYTON (2005)

Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.), rendered March 11, 2004, convicting him of murder in the second degree (two counts), attempted murder in the second degree, attempted robbery in the first degree (two counts), assault in the first degree (three counts), and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, viewing the evidence in a 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 his 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 trial court erred in refusing to give a missing witness charge for his accomplice is without merit (see People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583;  People v. Wright, 2 A.D.3d 546, 767 N.Y.S.2d 876).   In any event, the defendant failed to meet his burden of establishing that his accomplice was under the control of the prosecution (see People v. Gonzalez, supra at 427, 509 N.Y.S.2d 796, 502 N.E.2d 583).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).