People v. Beneke , 621 N.Y.S.2d 923 ( 1995 )

Appeal by the defendant from a judgment of the County Court, Suffolk County (Sherman, J.), rendered March 5, 1990, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5).

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it is 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 is not against the weight of the evidence (see, CPL 470.15 [5]).

Since the defendant failed to comply with the requirement of CPL article 660 that his application to examine a witness conditionally be in writing, the trial court was not required to order a conditional examination of the witness (see, CPL 660.40 [1]).

We do not find any merit in the defendant’s contention that the sentence that was imposed is harsh and excessive (see, People v Suitte, 90 AD2d 80).

Finally, the defendant’s remaining contentions are either unpreserved for appellate review or without merit. Rosenblatt, J. P., Altman and Florio, JJ., concur.