Opinion
December 23, 1991
Appeal from the County Court, Suffolk County (Sherman, J.).
Ordered that the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5).
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), 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 was not against the weight of the evidence (see, CPL 470.15).
The defendant failed to preserve his claim that the trial court erred by permitting the rebuttal witnesses to testify (see, People v Beavers, 127 A.D.2d 138, 140). In any event, the trial court properly exercised the discretion afforded by CPL 260.30 (7) in allowing the introduction of the rebuttal testimony.
The defendant's claim that the verdict was repugnant is also unpreserved for appellate review (see, People v Satloff, 56 N.Y.2d 745; People v Stahl, 53 N.Y.2d 1048). In any event, the verdict was not repugnant since the count of sexual abuse of which the defendant was acquitted did not contain the identical elements of the charges of which he was convicted (see, People v Alfaro, 108 A.D.2d 517, 519, affd 66 N.Y.2d 985; People v Pugh, 36 A.D.2d 845, 846, affd 29 N.Y.2d 909, cert denied 406 U.S. 921).
We have considered the defendant's remaining contention and find that it is without merit. Mangano, P.J., Kunzeman, Eiber and Balletta, JJ., concur.