Opinion
2003-1208 N CR.
Decided October 20, 2005.
Appeal from a judgment of the District Court of Nassau County, First District (William O'Brien, J.), rendered July 15, 2003. The judgment convicted defendant, after a nonjury trial, of menacing in the second degree.
Judgment of conviction unanimously affirmed.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
Defendant's motion to dismiss for failure to establish a prima facie case was based on the argument that the victim did not indicate that he was afraid. Said motion was not based on the contention, raised for the first time on appeal, that the People failed to prove the defendant's mens rea. Thus, defendant has failed to preserve this contention for appellate review ( see People v. Finger, 95 NY2d 894; People v. Johnson, 11 AD3d 979). In any event, even if we were to reach this issue in the interest of justice, we would be inclined to leave undisturbed the finding of guilt of menacing in the second degree by the court below. Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 NY2d 620), the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Defendant acted with the requisite intent as required by Penal Law §§ 15.05 (1) and 120.14 (1). Moreover, upon the exercise of factual review power, we are satisfied that the verdict of guilty was not against the weight of the evidence ( see CPL 470.15; People v. La Motte, 285 AD2d 814, 816).
Finally, upon a review of the record, we are of the opinion that the sentence imposed of three years' probation should not be disturbed.