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

The PEOPLE, etc., respondent, v. Pascual POLANCO, appellant.

Decided: September 30, 2008

ROBERT A. LIFSON, J.P., ANITA R. FLORIO, RANDALL T. ENG, and ARIEL E. BELEN, JJ. Mary E. Zugibe, Garnerville, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Richard Longworth Hecht of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered April 10, 2006, convicting him of criminal possession of a weapon in the third 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 is not preserved for appellate review (see People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Cona, 49 N.Y.2d 26, 33 n. 2, 424 N.Y.S.2d 146, 399 N.E.2d 1167).   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 to establish the defendant's guilt beyond a reasonable doubt.   The defendant's own testimony and the testimony of the complainant both indicated that the defendant held a knife to the victim's throat after the victim denied that he was harboring the defendant's missing wife (see People v. Nealy, 32 A.D.3d 400, 401, 819 N.Y.S.2d 106;  People v. Johnson, 23 A.D.3d 686, 802 N.Y.S.2d 801;  accord People v. Williams, 235 A.D.2d 267, 653 N.Y.S.2d 296).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Nealy, 32 A.D.3d at 401, 819 N.Y.S.2d 106;  People v. Johnson, 23 A.D.3d 686, 802 N.Y.S.2d 801;  cf. People v. Bell, 158 A.D.2d 697, 698, 552 N.Y.S.2d 148).

Contrary to the defendant's contention, the trial court did not err in declining to instruct the jury on the defense of justification (see People v. Pons, 68 N.Y.2d 264, 508 N.Y.S.2d 403, 501 N.E.2d 11;  People v. Cruz, 13 A.D.3d 390, 785 N.Y.S.2d 345;  People v. Tomback, 244 A.D.2d 586, 665 N.Y.S.2d 932;  People v. Olivera, 157 A.D.2d 676, 677, 549 N.Y.S.2d 777).

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