Opinion
2003-08545.
January 17, 2006.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered September 10, 2003, convicting him of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and William Branigan of counsel), for respondent.
Before: Schmidt, J.P., Mastro, Spolzino and Covello, JJ., concur.
Ordered that the judgment is affirmed.
Since the defendant affirmatively requested that the trier of fact consider manslaughter in the first degree as a lesser-included offense in this case, he should not now be heard to complain that there was insufficient evidence in the record to support a conviction of that charge ( see People v. Ferguson, 178 AD2d 149; see generally People v. Walden, 227 AD2d 887; People v. Alvarado, 213 AD2d 1013). Additionally, the defendant's current challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since he failed to advance his present arguments as a basis for dismissal in the trial court ( see CPL 470.05; People v. Gray, 86 NY2d 10; People v. Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 NY2d 620), we find the evidence 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).
The defendant's remaining contention is unpreserved for appellate review ( see People v. Lumpkins, 11 AD3d 563) and, in any event, is without merit ( see People v. Staples, 19 AD3d 1096; People v. Butler, 17 AD3d 379; People v. Davis, 277 AD2d 248; People v. Dennis, 210 AD2d 803).