PEOPLE v. GASKIN

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

The PEOPLE, etc., respondent, v. Wayne GASKIN, appellant.

Decided: October 31, 2005

THOMAS A. ADAMS, J.P., DANIEL F. LUCIANO, PETER B. SKELOS, and ROBERT A. LIFSON, JJ. Robert C. Mitchell, Riverhead, N.Y. (Robert B. Kenney of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Corso, J.), rendered October 10, 2002, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the evidence was legally insufficient to establish his guilt of murder in the second degree (see Penal Law § 125.25 [2] ).   As the defendant made only a generalized motion for a trial order of dismissal, this contention is not preserved 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).   The defendant's motion to set aside the verdict pursuant to CPL 330.30, in which he raised essentially the same argument that he now raises on appeal, was not sufficient to preserve this contention for appellate review (see People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  People v. Adams, 281 A.D.2d 486, 721 N.Y.S.2d 791).   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.   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 are without merit.

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