| People v Flores |
| 2007 NY Slip Op 06713 [43 AD3d 955] |
| September 11, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarioRoberto Flores, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Peter A. Weinstein and Laurie K.Spinella of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.),rendered April 29, 2005, convicting him of murder in the second degree, criminal possession of aweapon in the second degree, criminal possession of a weapon in the third degree, and tamperingwith physical evidence, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of murder inthe second degree and vacating the sentence imposed thereon; as so modified, the judgment isaffirmed.
The defendant's conviction of depraved indifference murder (see Penal Law §125.25 [2]) must be vacated, as that count of the indictment had been dismissed by another judgeprior to trial and was later mistakenly submitted to the jury by the trial judge (see People v Shampine, 31 AD3d1163, 1164 [2006]; People v Romero, 309 AD2d 953, 954 [2003]; People vSmiley, 303 AD2d 425, 426 [2003]; People v Harris, 229 AD2d 595 [1996]).
The defendant's contention that the evidence against him was legally insufficient to establishhis guilt of criminal possession of a weapon in the second degree is unpreserved for appellatereview (see CPL 470.05 [2]; People v Daniels, 35 AD3d 495, 496 [2006]). In any event, viewingthe evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), the evidence as to this charge was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Daniels, supra; People vEdwards, 29 AD3d 818, 819 [2006]).[*2]
The sentences imposed on the remaining counts ofcriminal possession of a weapon in the second degree, criminal possession of a weapon in thethird degree, and tampering with physical evidence were not excessive (see People vSuitte, 90 AD2d 80 [1982]).
In light of the foregoing, the defendant's remaining contentions regarding the conviction fordepraved indifference murder have been rendered academic. Crane, J.P., Ritter, Dillon and Carni,JJ., concur.