Opinion
December 18, 1989
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to support the defendant's guilt. Moreover, upon the exercise of our factual review power (see, CPL 470.15), we find that the verdict was not against the weight of the evidence.
There is no merit to the defendant's contention that his retrial was barred by his success in having his first conviction under the indictment in question nullified by the United States District Court, Southern District of New York, on the ground of prosecutorial misconduct (see, Perkins v Le Fevre, 691 F.2d 616). A claim of double jeopardy will not bar retrial under an accusatory instrument following the nullification of an earlier judgment of conviction obtained under that instrument (see, CPL 40.30; compare, People v Key, 45 N.Y.2d 111; People v Gonzalez, 81 A.D.2d 838, 839).
The defendant's remaining contentions are either without merit or are unpreserved for appellate review. Brown, J.P., Kunzeman, Sullivan and Balletta, JJ., concur.