PEOPLE v. DELSTON (2006)

Appeal by the defendant from a judgment of the County Court, Nassau County (Belfi, J.), rendered February 25, 2004, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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.   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 argues that the trial court erred in sentencing him as a second felony offender.   The defendant, however, failed to preserve this claim for appellate review since he did not contest or controvert his status as a second felony offender when he had the opportunity to do so at the sentencing hearing (see People v. Hamilton, 205 A.D.2d 706, 613 N.Y.S.2d 677;  People v. Khatib, 166 A.D.2d 668, 561 N.Y.S.2d 88;  see also People v. Smith, 73 N.Y.2d 961, 540 N.Y.S.2d 987, 538 N.E.2d 339).

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

The defendant's contention raised in point three of his brief is unpreserved for appellate review and, in any event, is without merit. The defendant's remaining contention raised in point one of his brief is without merit.