The People of the State of New York, Respondent, v. Nelson Cruz, Appellant

The People of the State of New York, Respondent, v Nelson Cruz, Appellant. [724 NYS2d 341] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered March 12, 1999, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s contention that the evidence was legally insufficient to support his conviction of depraved indifference murder (see, Penal Law § 125.25 [2]) is not preserved for appellate review (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10; People v Udzinski, 146 AD2d 245). In any event, 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 (see, People v Peterson, 262 AD2d 502; People v Arce, 242 AD2d 508; People v Cole, 233 AD2d 247; People v Tankleff, 199 AD2d 550, affd 84 NY2d 992; People v Marsh, 140 AD2d 631). 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]). Contrary to the defendant’s contention in his supplemental pro se brief, the Supreme Court did not err in denying his untimely request for a missing witness charge (see, People v St. Fleur, 243 AD2d 740). The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80). Altman, J. P., Krausman, Luciano and Cozier, JJ., concur.