Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered January 5, 2011.
Released on November 9, 2012
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
The judgment convicted defendant, upon a non-jury verdict, of attempted arson in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a non-jury verdict of attempted arson in the second degree (Penal Law §§ 110.00, 150.15). Contrary to defendant's contention, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), we conclude that the evidence is legally sufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495). Furthermore, viewing the evidence in light of the elements of the crime in this non-jury trial (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Finally, defendant contends that County Court erred in sentencing him as a second felony offender based upon a prior conviction in the State of South Carolina. By consenting to the use of that conviction as a predicate for sentencing enhancement purposes, defendant waived his right to appellate review of his contention (see generally People v Walker, 96 AD3d 1481, 1482; People v Hicks, 12 AD3d 1044, 1045, lv denied 4 NY3d 799). Entered: November 9, 2012 Frances E. Cafarell Clerk of the Court
© 1992-2012 VersusLaw ...