Opinion
October 17, 1988
Appeal from the Supreme Court, Kings County (Bourgeois, J).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he failed to establish by a preponderance of evidence that he had no reasonable ground to believe that his accomplice in a street robbery was armed with a deadly weapon or that his accomplice would engage in conduct likely to result in death or serious physical injury (Penal Law § 125.25; see, People v Bornholdt, 33 N.Y.2d 75, cert denied sub nom. Victory v New York, 416 U.S. 905). Rather, the evidence adduced at trial established that while the defendant himself did not possess a gun or commit the homicidal act, he did take part in a robbery, aiding an accomplice he knew to be armed (see, People v Brailsford, 106 A.D.2d 648). Moreover, the same eyewitness who saw the defendant's accomplice receive the gun in the defendant's presence also saw the defendant rifle the victim's pockets after the shooting. Clearly then the evidence established beyond a reasonable doubt that the defendant acted as far more than a mere lookout (cf., People v Perez, 121 A.D.2d 406, lv denied 68 N.Y.2d 772). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15).
We have reviewed the defendant's remaining contention and find it to be unpreserved for review (CPL 470.05) and in any event, to be without merit (see, People v Ashwal, 39 N.Y.2d 105, 109). Mangano, J.P., Weinstein, Kooper and Balletta, JJ., concur.