
    The People of the State of New York, Respondent, v Christopher Rustici, Appellant.
    [756 NYS2d 498]
   —Appeals by the defendant (1) from a judgment of the County Court, Nassau County (Belfi, J.), rendered February 29, 2000, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court dated September 21, 2001, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

Ordered that the judgment and order are affirmed.

The defendant’s contention that the evidence was legally insufficient is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of murder in the second degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt on the charge of murder in the second degree was not against the weight of the evidence (see CPL 470.15 [5]).

The defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction was properly denied. The defendant failed to meet his burden of demonstrating that the evidence submitted on the motion could not have been produced at the trial with due diligence or that the evidence was such that it would probably change the result if a new trial were granted (see People v Latella, 112 AD2d 321 [1985]).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Ritter, J.P., Santucci, Feuerstein and Schmidt, JJ., concur.  