— Appeal by the defendant from á judgment of the Supreme Court, Kings County (Egitto, J.), rendered January 4, 1985, convicting him of attempted murder in the first degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Both the defendant and his codefendant, Ricky Caldwell,
The codefendant Caldwell was convicted of all of the aforementioned charges, and this court affirmed his conviction (People v Caldwell, 125 AD2d 402). The defendant was convicted of two counts of attempted murder in the first degree and was acquitted of the remaining counts.
On the instant appeal, the defendant argues, inter alia, that the People failed to prove his guilt beyond a reasonable doubt.
We disagree.
Since the defendant was acquitted of all the weapons possession charges, it is clear that he was convicted of attempted murder in the first degree on the theory, as charged by the court, that he acted in concert with his codefendant Caldwell, in an attempt to kill the two police officers.
The People adduced evidence at the trial which indicated that as the codefendant opened the door on the driver’s side of the Buick, and as the defendant opened the passenger’s side door, the police officers identified themselves and yelled "don’t move”. At this point, the codefendant said "okay, okay”. The codefendant then "crouched down and went to his waist with his right hand” and turned counterclockwise with "a weapon in his hand”. Simultaneously with both the police officer’s command and the codefendant’s initial movement, i.e., before any shots were fired, the defendant ducked down on the front passenger seat of the Buick. By this behavior, the defendant indicated that he was aware that the codefendant had a gun, and was about to initiate a shoot-out with the police. The defendant also remained in the Buick when it slowly pulled out of its parking spot shortly after the shoot-out. Contrary to the defendant’s contentions, the jury was properly instructed with respect to accessorial liability, both in the court’s original charge and subsequently during deliberations when the court further instructed the jury concerning the concept of acting in concert. Moreover, the jurors’ questions concerning accessorial liability as it pertained to the attempted murder counts in the event convictions were not returned on the weapons counts
Contrary to the dissent’s argument, the particular facts in this case are distinguishable from People v Cummings (131 AD2d 865), where the defendant, who was in a car, merely leaned forward, as shots were fired by another person from inside the car, and from People v Shanklin (59 AD2d 588), where the defendant, who was behind the steering wheel, leaned back to avoid a shot which was about to be fired by another person who was sitting in the front passenger seat. Moreover, 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 [5]).
We also find the defendant’s challenges to the court’s charge to be either unpreserved for appellate review, or without merit.
Finally, we reject the defendant’s contention that the sentences imposed were unduly harsh or excessive. In view of the defendant’s criminal history and the gravity of the instant offense, the sentencing court did not abuse its discretion in imposing maximum consecutive sentences (see, Penal Law § 70.25 [2]; People v Brathwaite, 63 NY2d 839; People v Caldwell, 125 AD2d 402, supra). Mangano, J. P., Lawrence and Kooper, JJ., concur.