People v. Herriot

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered January 4, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant failed to preserve for appellant review his *600contention that the preindictment delay deprived him of due process (see People v Cedeno, 52 NY2d 847, 848; People v Champelle, 144 AD2d 378), and we decline to reach the issue in the exercise of our interest of justice jurisdiction (see CPL 470.15 [3]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish that the defendant acted with depraved indifference (see People v Roe, 74 NY2d 20, 24; People v Smith, 255 AD2d 404, 405; People v Dellemand, 205 AD2d 551, 552). 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]). Altman, J.P., S. Miller, McGinity and Schmidt, JJ., concur.