The People of the State of New York, Respondent, v. Andrew Ellison, Appellant

The People of the State of New York, Respondent, v Andrew Ellison, Appellant. [MAJORITY] — Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered August 3, 1988, convicting him of rape in the first degree, sodomy in the first degree (two counts), and assault in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5). On this appeal, the defendant claims, inter alia, that the prosecution failed to adduce evidence legally sufficient to establish the element of criminal intent for each of the crimes charged. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we aré satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]). We note that the sentence imposed upon the defendant was not excessive (see, People v Suitte, 90 AD2d 80). We have examined the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Mollen, P. J., Thompson; Kunzeman and Spatt, JJ., concur.