People v James Gardner

People v Gardner 2006 NY Slip Op 01637 [27 AD3d 482] March 7, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 17, 2006

The People of the State of New York, Respondent,
v
James Gardner, Appellant.

—[*1]Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered March 31, 2004, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant's contention that the prosecution failed to prove his identity as one of the complainant's attackers by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Udzinski, 146 AD2d 245 [1989]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt of assault in the first degree 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 [5]). Crane, J.P., Krausman, Rivera and Dillon, JJ., concur.