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

The PEOPLE, etc., Respondent, v. Martin BELTRY, Appellant.

Decided: January 27, 1997

Before RITTER, J.P., and THOMPSON, FRIEDMANN and McGINITY, JJ. Daniel L. Greenberg, New York City (Harold V. Ferguson, Jr., of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Keith Dolan, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dabiri, J.), rendered May 8, 1995, convicting him of attempted robbery 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 was convicted of various crimes arising from his attempt to rob a grocery store at gunpoint.   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] ).

Further, in light of the testimony, inter alia, of two police officers who observed the defendant inside the grocery store waving a gun, and his apprehension within the store after an unsuccessful effort to escape, any error in the court's denial of the defendant's request for a missing witness charge as to the owner of the store was harmless (see, People v. Vasquez, 76 N.Y.2d 722, 557 N.Y.S.2d 873, 557 N.E.2d 109;  People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's remaining contention is unpreserved for appellate review.


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