PEOPLE v. PONDER

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245). 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. 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 prosecutor had a good faith basis to cross-examine the defendant about his purported drug-selling activities ( see People v. Alamo, 23 N.Y.2d 630, 634, cert denied 396 U.S. 879; People v. Sealy, 167 A.D.2d 362, 363).

The defendant's contention that the Supreme Court improperly considered a charge of which he was acquitted as a basis for imposing sentence is unpreserved for appellate review ( see CPL 470.05; People v. Hurley, 75 N.Y.2d 887; People v. Emmanus, 300 A.D.2d 504), and in any event, is without merit ( see People v. Emmanus, supra; cf. People v. Reeder, 298 A.D.2d 468).

The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contention is without merit.

ALTMAN, J.P., FLORIO, FRIEDMANN and MASTRO, JJ., concur.