People v. Jacobs , 592 N.Y.S.2d 1002 ( 1992 )

Judgment unanimously affirmed. Memorandum: Defendant contends that the proof was not legally sufficient to sustain his conviction of assault in the second degree. We reject that contention. The People’s proof, if accepted as true, established every element of the offense charged (see, CPL 70.10 [1]).

We further reject defendant’s contention that the verdict was inconsistent and repugnant. Defendant has failed to preserve that issue for our review (see, People v Baldwin, 130 AD2d 666). Were we to review defendant’s contention in the interest of justice, we would conclude that it is without merit. The jury could have determined that defendant did not possess a gun, but that he acted as an accomplice to his brother, who used a gun in the assault.

An appeal from denial of a CPL 440.10 motion may be made only after obtaining leave to appeal from this Court (CPL 450.15, 460.15), and permission for such appeal has not been granted (see, People v Kruk, 52 AD2d 969).

We have reviewed defendant’s remaining contentions including those raised in his pro se brief and find them to be either unpreserved for review or without merit. (Appeal from Judgment of Niagara County Court, Hannigan, J. — Assault, 2nd Degree.) Present — Denman, P. J., Green, Lawton, Fallon and Doerr, JJ.