PEOPLE v. NYLANDER (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered May 7, 2003, convicting him of murder in the second 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 is unpreserved for appellate review (see CPL 470.05[2];  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.   The trial evidence established that the defendant provided the gun used to shoot the victim, and drove the shooter and two accomplices away from the scene.   In addition, the testimony from the accomplice witness was sufficiently corroborated by evidence from an independent source tending to “ connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice [was] telling the truth” (People v. Daniels, 37 N.Y.2d 624, 630, 376 N.Y.S.2d 436, 339 N.E.2d 139;  see CPL 60.22[1];  People v. Singleton, 144 A.D.2d 504, 505, 534 N.Y.S.2d 191).   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] ).

Viewing the evidence in the light most favorable to the defendant, no reasonable view of the evidence warranted a jury instruction on the affirmative defense to felony murder (see Penal Law § 125.25[3];  People v. Watts, 57 N.Y.2d 299, 456 N.Y.S.2d 677, 442 N.E.2d 1188;  People v. McNeely, 222 A.D.2d 611, 636 N.Y.S.2d 638;  see also People v. Butts, 72 N.Y.2d 746, 536 N.Y.S.2d 730, 533 N.E.2d 660).