PEOPLE v. DRAYTON

Ordered that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05). In any event, viewing the evidence in a light most favorable to the prosecution ( see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish his 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).

The defendant's contention that the trial court erred in refusing to give a missing witness charge for his accomplice is without merit ( see People v. Gonzalez, 68 NY2d 424; People v. Wright, 2 AD3d 546). In any event, the defendant failed to meet his burden of establishing that his accomplice was under the control of the prosecution ( see People v. Gonzalez, supra at 427).

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