People v Kearney
2006 NY Slip Op 00370 [25 AD3d 622]
January 17, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 22, 2006

The People of the State of New York, Respondent,
Richard Kearney, Appellant.

[*1]Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered September 10, 2003, convicting him of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

Since the defendant affirmatively requested that the trier of fact consider manslaughter in the first degree as a lesser-included offense in this case, he should not now be heard to complain that there was insufficient evidence in the record to support a conviction of that charge (see People v Ferguson, 178 AD2d 149 [1991]; see generally People v Walden, 227 AD2d 887 [1996]; People v Alvarado, 213 AD2d 1013 [1995]). Additionally, the defendant's current challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since he failed to advance his present arguments as a basis for dismissal in the trial court (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]; 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 the evidence 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 [5]).

The defendant's remaining contention is unpreserved for appellate review (see People v Lumpkins, 11 AD3d 563 [2004]) and, in any event, is without merit (see People v Staples, 19 AD3d 1096 [2005]; People v Butler, 17 AD3d 379 [2005]; People v Davis, 277 AD2d 248 [2000]; People v Dennis, 210 AD2d 803 [1994]). Schmidt, J.P., Mastro, Spolzino and Covello, JJ., concur.