
    The People of the State of New York, Respondent, v James Rolston, Appellant.
   — Judgment unanimously affirmed. Memorandum: There is no merit to defendant’s contentions that the People failed to present legally sufficient evidence to support his conviction of reckless endangerment in the first degree (Penal Law § 120.25) and endangering the welfare of an incompetent (Penal Law § 260.25). The record reveals that defendant offered money to the victim, a 29-year-old mentally disabled person, to do push-ups and sit-ups on a well-traveled street in the City of Buffalo. The victim performed some pushups in the street, returned to the sidewalk, then returned to the street to perform sit-ups. While performing the requested exercises, he was struck by a car and seriously injured. The evidence also revealed that, on prior occasions, defendant had offered money to the victim to perform various physical acts.

The evidence, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620), was sufficient to establish that the victim lacked sufficient capacity to care for himself within the meaning of Penal Law § 260.25 and that defendant knew it was likely that the victim’s physical well-being would be endangered by performing physical acts in the street. Moreover, the proof was sufficient to establish that defendant knew or should have known that such acts would create a grave risk of death and, given the victim’s disability, that defendant’s conduct evinced a depraved indifference to human life (see, Penal Law § 120.25; People v Kihbe, 35 NY2d 407).

Defendant failed to preserve for appellate review his contention that the trial court improperly coerced the jury’s verdict (see, CPL 470.05 [2]; People v Pacheco, 156 AD2d 593, 594, lv denied 75 NY2d 922) and the exercise of our discretionary review powers is not warranted. In any event, that contention has no merit. Likewise without merit is defendant’s contention that the sentence imposed is harsh or excessive. (Appeal from Judgment of Supreme Court, Erie County, Kubiniec, J.— Reckless Endangerment, 1st Degree.) Present — Callahan, J. P., Green, Balio, Fallon and Doerr, JJ.  