Opinion
September 18, 1995
Appeal from the Supreme Court, Richmond County (Felig, J.).
Ordered the judgment, as amended, is affirmed.
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 of guilt was not against the weight of the evidence (CPL 470.15).
It cannot be said that the defendant was denied fair notice of the charges against him, since he received notice prior to trial of the fact that the People were prosecuting him on an "acting in concert" theory (cf., People v Rivera, 198 A.D.2d 529, 530, affd 84 N.Y.2d 766; People v Gaskin, 184 A.D.2d 525). Moreover, the trial court's charge on acting in concert did not prejudice the defendant, since "[t]here is no distinction between liability as a principal and criminal culpability as an accessory and the status for which the defendant is convicted has no bearing upon the theory of the prosecution" (see, People v Duncan, 46 N.Y.2d 74, 79-80, rearg denied 46 N.Y.2d 940, cert denied 442 U.S. 910).
Finally, the defendant's sentence was neither harsh nor excessive (see, People v Delgado, 80 N.Y.2d 780; People v Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contentions raised in his supplemental pro se brief and find them to be without merit. Balletta, J.P., Copertino, Pizzuto and Krausman, JJ., concur.