PEOPLE v. SMILEY

ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the third degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.

The defendant's contention that the People failed to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Nery, 243 A.D.2d 585; People v. Reeder, 209 A.D.2d 551). 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 disprove the defense of justification 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 People correctly concede that the defendant's conviction of assault in the third degree must be vacated, since that count of the indictment was dismissed before the trial and was mistakenly submitted to the jury (see People v. Boston, 75 N.Y.2d 585, 587; People v. Harris, 229 A.D.2d 595). However, the defendant's contention that the remaining counts must be reversed because he was prejudiced by the introduction of evidence regarding the dismissed count is unpreserved for appellate review (see People v. Castellano, 284 A.D.2d 406, 407; CPL 470.05), and, in any event, is without merit (see People v. Williams, 292 A.D.2d 474, 475).

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

The defendant's remaining contentions are without merit.

RITTER, J.P., FEUERSTEIN, KRAUSMAN and LUCIANO, JJ., concur.