PEOPLE v. MERCHANT

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence of his guilt is unpreserved for appellate review ( see People v. Gray, 86 N.Y.2d 10). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt, based upon an acting-in-concert theory ( see People v. Canty, 305 A.D.2d 612) . 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 Supreme Court properly declined the defendant's request for a jury instruction regarding the affirmative defense to felony murder under Penal Law § 125.25(3). The defendant's post-arrest statements revealed that he was a knowing participant in the robbery that his companions intended to commit, and that one of them was armed with a baseball bat to be used if the victim resisted (see People v. Brown, 174 A.D.2d 750; People v. Pearson, 118 A.D.2d 737).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

SANTUCCI, J.P., S. MILLER, CRANE and RIVERA, JJ., concur.