Opinion
October 5, 1987
Appeal from the County Court, Westchester County (Rosato, J.).
Ordered that the judgment is affirmed.
Viewing the evidence adduced at the trial in the light most favorable to the People, we find that the evidence is sufficient as a matter of law to support the defendant's conviction of the crimes charged (see, People v. Lewis, 64 N.Y.2d 1111). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15).
In addition, we find that the trial court properly warned one of the People's witnesses that he was subjecting himself to possible perjury or contempt charges due to his frequent lack of recall at trial (see, People v. Gottfried, 61 N.Y.2d 617; People v. Lee, 58 N.Y.2d 773). We reject the defendant's contention that these admonitions coupled with the trial court's allowing the witness to return to testify several days later denied the defendant a fair trial (cf., Webb v. Texas, 409 U.S. 95; People v Ramos, 63 A.D.2d 1009).
The defendant contends that his conviction of the crime of criminal possession of a weapon in the third degree (see, Penal Law § 265.02) cannot be permitted to stand together with his conviction of criminal use of a firearm in the first degree (see, Penal Law § 265.09) and that his conviction of manslaughter in the second degree (see, Penal Law § 125.15) cannot be permitted to stand with his conviction of manslaughter in the first degree because they are inclusory concurrent counts (see, Penal Law § 125.20). However, the defendant has failed to preserve these contentions for appellate review (see, People v. Josey, 131 A.D.2d 699).
Our review of the record indicates that the court fairly marshaled the evidence (see, People v. Owens, 69 N.Y.2d 585, 591). Also, the defendant's claim that his sentence was excessive is without merit (see, People v. Suitte, 90 A.D.2d 80, 85). Finally, we have reviewed the defendant's remaining contention and find it to be without merit. Lawrence, J.P., Eiber, Spatt and Sullivan, JJ., concur.