People v. Whilby — 204 A.D.2d 370

Majority

p. 370

The People of the State of New York, Respondent, v Donovan Whilby, Appellant.

[614 NYS2d 137]

—Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Brill, J.), rendered October 9, 1992, convicting him of assault in the second degree, criminal possession of a weapon

p. 371

in the fourth degree, and petit larceny under Indictment No. 8466/91, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered October 9, 1992, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted robbery in the second degree under Indictment No. 12221/90.

Ordered that the judgment and the amended judgment are 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 was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s contention that the court’s charge on the concept of reasonable doubt shifted the burden of proof is unpreserved for appellate review (see, People v Lavin, 182 AD2d 710 ) and, in any event, is without merit (see, People v Antommarchi, 80 NY2d 247 ; People v Rivera, 174 AD2d 530 ).

In view of our determination under Indictment No. 8466/91, there is no basis for vacatur of the plea under Indictment No. 12221/90 (cf., People v Clark, 45 NY2d 432 ). Miller, J. P., Altman, Goldstein and Florio, JJ., concur.

Cases cited

People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 371
People v. Lavin 182 AD2d 710 N.Y. App. Div. 1992-04-13 p. 371
People v. Antommarchi 80 NY2d 247 N.Y. 1992-10-27 p. 371
People v. Clark 45 NY2d 432 N.Y. 1978-07-13 p. 371