Opinion
1996-08344
Submitted February 19, 2002.
March 18, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Klein, J.), rendered September 11, 1996, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Robert C. Mitchell, Riverhead, N.Y. (Monroe A. Semble of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., SANDRA J. FEUERSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
ORDERED that the judgment is affirmed.
The trial court correctly determined that the decedent's statement made before his death qualified as both a dying declaration (see, People v. Nieves, 67 N.Y.2d 125) and an excited utterance (see, People v. Cotto, 92 N.Y.2d 68, 79).
The defendant's contention that the evidence was legally insufficient to establish his guilt of murder in the second degree is unpreserved for appellate review (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245). In any event, 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 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 sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
PRUDENTI, P.J., FEUERSTEIN, LUCIANO and SCHMIDT, JJ., concur.