Opinion
1999-08441
Argued February 5, 2003.
February 24, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered August 26, 1999, convicting him of attempted murder in the second degree and assault in the first degree (two counts), upon a jury verdict, and imposing sentence.
Mischel, Neuman Horn, P.C., New York, N.Y. (Richard E. Mischel of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Emil Bricker of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt of attempted murder in the second degree and assault in the first degree is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 19; People v. Udzinski, 146 A.D.2d 245, 250). In any event, 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 (see CPL 470.15).
The Supreme Court providently exercised its discretion in denying the defendant's motion pursuant to CPL 330.30 to set aside the verdict based on newly-discovered evidence, without a hearing (see People v. Salemi, 309 N.Y. 208, 215, cert denied 350 U.S. 950; People v. Pacheco, 293 A.D.2d 629; People v. Baxley, 194 A.D.2d 681, 682, mod on other grounds 84 N.Y.2d 208). Further, the court properly admitted the expert testimony of Dr. Roger Yurt, who was permitted to testify regarding burn patterns. Dr. Yurt unquestionably was qualified to give this testimony based on his cumulative and lengthy experience in treating burn patients (see Matott v. Ward, 48 N.Y.2d 455, 459; People v. Paun, 269 A.D.2d 546).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
SANTUCCI, J.P., KRAUSMAN, ADAMS and CRANE, JJ., concur.