People v. Mitchell

—Appeal by the defendant from a judgment of the County Court, Westchester County (LaCava, J.), rendered November 13, 1997, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 25 years to life on the conviction of murder in the second degree and a determinate term of imprisonment of one year on the conviction of criminal possession of a weapon in the fourth degree, to run concurrently with the other sentence.

*409Ordered that the judgment is modified, by reducing the minimum term of imprisonment imposed for murder in the second degree to 20 years; as so modified, the judgment is affirmed.

The defendant’s contention that the evidence was legally insufficient to establish his guilt of depraved indifference murder is unpreserved for appellate review (see, CPL 470.05 [2]; People v Stahl, 53 NY2d 1048; People v Tallarine, 223 AD2d 738; People v Padro, 75 NY2d 820; People v Grossfeld, 216 AD2d 319). 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. 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]).

However, the sentence is excessive to the extent indicated. Ritter, J. P., S. Miller, Florio and H. Miller, JJ., concur.