People v. Riolo

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Klein, J.), rendered September 11, 1996, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court correctly determined that the decedent’s statement made before his death qualified as both a dying declaration (see, People v Nieves, 67 NY2d 125) and an excited utterance (see, People v Cotto, 92 NY2d 68, 79).

The defendant’s contention that the evidence was legally insufficient to establish his guilt of murder in the second degree is unpreserved 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 People (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 *549review power, we are satisfied, that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are without merit. Prudenti, P.J., Feuerstein, Luciano and Schmidt, JJ., concur.