PEOPLE v. MARTINEZ

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. William MARTINEZ, appellant.

Decided: October 25, 2004

ANITA R. FLORIO, J.P., NANCY E. SMITH, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ. Robert C. Mitchell, Riverhead, N.Y. (Robert B. Kenney of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Linda Kevins and Rosalind Gray of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullin, J.), rendered July 31, 2002, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his conviction of manslaughter in the first degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 20-22, 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, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient, as there were two eyewitnesses who testified to seeing him stab the victim in the stomach, and the defendant confessed to the stabbing (see Penal Law § 125.20[1] ).   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 sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions either are unpreserved for appellate review or without merit.

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