Opinion
September 18, 1995
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to establish the "abduct[ion]" element of kidnapping in the second degree which requires proof of restraint by either secreting or holding the victim in a place where he or she is not likely to be found (Penal Law § 135.00 [a]) or by using or threatening to use deadly physical force (Penal Law § 135.00 [b]). The People concede on appeal that there was no evidence of deadly physical force, therefore the element of abduction as defined in Penal Law § 135.00 (2) (b) was not established. The defendant's contention that the evidence was also legally insufficient to establish the element of abduction as defined by Penal Law § 135.00 (2) (a) is unpreserved for appellate review as this argument was not raised in the trial court (see, People v Bynum, 70 N.Y.2d 858; People v Udzinski, 146 A.D.2d 245). In his motion to dismiss at the end of the People's case, the defendant argued only that the evidence was legally insufficient to establish that the abduction was accomplished by the use or threatened use of deadly physical force. In any event, we find that there was legally sufficient evidence to establish that the victim was secreted or held in a place where she was not likely to be found (see, e.g., People v Salimi, 159 A.D.2d 658; People v Valero, 134 A.D.2d 635).
The defendant further contends that the verdict was against the weight of the evidence because, inter alia, the eyewitness' testimony, including her identification of him, was incredible. 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 defendant's remaining contentions are either unpreserved for appellate review or without merit. Miller, J.P., O'Brien, Ritter and Hart, JJ., concur.