Opinion
June 5, 1995
Appeal from the Supreme Court, Kings County (Barasch, J., Slavin, J.).
Ordered that the judgment and amended judgment are affirmed.
The defendant contends that the undercover officer's testimony was incredible as a matter of law. Initially, we find that this claim is unpreserved for appellate review (see, People v. Bynum, 70 N.Y.2d 858, 859; People v. Harrison, 208 A.D.2d 648). In any event, viewing the evidence in a light most favorable to the People, we find that it was legally sufficient to establish the defendant's guilt of conspiracy in the second degree beyond a reasonable doubt (see, People v. Contes, 60 N.Y.2d 620). Contrary to the defendant's contention, his acquittal of the substantive crimes underlying the conspiracy, and the acquittal of some of his codefendants after trial of the conspiracy charge, does not render the evidence against this defendant legally insufficient (see, People v. Berkowitz, 50 N.Y.2d 333, 342; People v. McGee, 49 N.Y.2d 48, 57, cert denied sub nom. Waters v. New York, 446 U.S. 942; People v. Schwimmer, 47 N.Y.2d 1004, 1005, affg 66 A.D.2d 91). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15).
The prosecutor's comments during summation did not deprive the defendant of a fair trial (see, People v. Fludd, 195 A.D.2d 478; People v. Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837).
The defendant's remaining contention is without merit. Bracken, J.P., Copertino, Krausman and Florio, JJ., concur.