The People of the State of New York, Respondent, v. Luis Fernandez, Appellant

The People of the State of New York, Respondent, v Luis Fernandez, Appellant. [616 NYS2d 257] [MAJORITY] —Appeal by the defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered September 30, 1992, convicting him of murder in the second degree and conspiracy in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. 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 are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). The defendant’s motion for a separate trial was properly denied inasmuch as he and his codefendants (see, People v Barbieri, 207 AD2d 554 [decided herewith]; People v Berroa, 207 AD2d 556 [decided herewith]) were charged with acting in concert, the proof against all of them was supplied by the same evidence, and the defendant failed to demonstrate that his defense and those of his codefendants were in irreconcilable conflict (see, People v Mahboubian, 74 NY2d 174; People v Bornholdt, 33 NY2d 75). We find that the sentence imposed was not excessive under the circumstances of this case (see, People v Suitte, 90 AD2d 80). Ritter, J. P., Pizzuto, Santucci and Altman, JJ., concur.