PEOPLE v. GEROFSKY

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

The PEOPLE, etc., Respondent, v. Brian GEROFSKY, Appellant.

Decided: November 24, 1997

Before PIZZUTO, J.P., and SANTUCCI, JOY and FLORIO, JJ. Hillard Wiese, Brooklyn, for appellant. Francis D. Phillips II, District Attorney, Goshen (David R. Huey, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered November 9, 1995, convicting him of murder in the second degree, criminally negligent homicide, robbery in the first degree, robbery in the second degree, assault in the first degree, and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the People failed to present legally sufficient proof that the victim's pocketbook was forcibly stolen (see, Penal Law § 160.00).   The defendant also contends that the People failed to prove his accessorial culpability beyond a reasonable doubt (see, Penal Law § 20.00).  However, these contentions are unpreserved for appellate review because they were not presented before the trial court in support of the defendant's trial order of dismissal at the close of the People's case (see, CPL 470.05[2];  People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4).   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 defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are 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;  People v. Goins, 231 A.D.2d 860, 648 N.Y.S.2d 192), without merit, or do not require reversal.

MEMORANDUM BY THE COURT.

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