Opinion
April 12, 1993
Appeal from the Supreme Court, Richmond County (Kuffner, J.).
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Richmond 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 that the defendant swore falsely and that her false statement was made in a subscribed written instrument for which an oath is required by law (see, Penal Law § 210.10). The notarization on her affidavit raised a presumption that the oath was properly taken before a notary public (see, Case v People, 76 N.Y. 242, 245; People v Grier, 42 A.D.2d 803; People ex rel. Fifth Ave. 37th St. Corp. v Miller, 261 App. Div. 550, 552, affd 286 N.Y. 628). The testimony of the defendant's witness that he observed the defendant sign the affidavit outside the presence of the notary public and that the affidavit was notarized at a subsequent time was insufficient to rebut this presumption, since this witness had no knowledge of the events surrounding the notarization. Moreover, upon the exercise of our factual review power, we find that the verdict on this count was not against the weight of the evidence (see, CPL 470.15).
We further find that the sentence imposed was not excessive (see, People v Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions and find them to be without merit. Lawrence, J.P., Eiber, O'Brien and Ritter, JJ., concur.