People v. Merchant

—Appeal by the defendant from a judgment of the County Court, Nassau County (Belfi, J.), rendered June 29, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant has not preserved for appellate review his contention that the evidence was legally insufficient to establish his guilt of murder in the second degree based upon a theory of depraved indifference (see, CPL 470.05 [2]; People v Stahl, 53 NY2d 1048, 1050). 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 *581establish 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]; People v Gaimari, 176 NY 84, 94; People v Garafolo, 44 AD2d 86, 88). Bracken, P. J., Luciano, Feuerstein and Adams, JJ., concur.