Opinion
2001-10885.
Argued October 23, 2003.
November 24, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered November 27, 2001, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
Before: SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of his right to be present at a particular sidebar conference, as the conference concerned purely legal matters ( see People v. DePallo, 96 N.Y.2d 437; People v. Rodriguez, 85 N.Y.2d 586, 590-591; People v. Polite, 291 A.D.2d 511).
The defendant's contention that the evidence was legally insufficient to establish his guilt of the crime of criminal possession of a weapon 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 prosecution ( 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 ( see Penal Law § 265.15; People v. Topsy, 265 A.D.2d 353; People v. Steward, 213 A.D.2d 570; People v. Bumbury, 194 A.D.2d 735; People v. Gillespie, 168 A.D.2d 567; People v. Wooten, 149 A.D.2d 751; People v. Carrion, 136 A.D.2d 649). 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; People v. Steward, supra).
The defendant's contention that the sentencing court improperly considered charges of which he was acquitted as a basis for imposing sentence is unpreserved for appellate review ( see CPL 470.05; People v. Emmanus, 300 A.D.2d 504), and, in any event, is without merit ( see People v. Robinson, 250 A.D.2d 629).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
S. MILLER, J.P., KRAUSMAN, TOWNES and COZIER, JJ., concur.