| People v Almanzar |
| 2008 NY Slip Op 09809 [57 AD3d 686] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mThe People of the State of New York, Respondent, v LuisAlmanzar, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), forrespondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Suffolk County (Mullen, J.),rendered November 9, 2005, convicting him of assault in the second degree and criminal possession ofa weapon in the fourth degree under indictment No. 2790-02, upon a jury verdict, and imposingsentence, and (2) a judgment of the same court, also rendered November 9, 2005, convicting him ofbail jumping in the first degree under indictment No. 1333-04, upon a jury verdict, and imposingsentence.
Ordered that the judgment rendered under indictment No. 2790-02 is affirmed; and it is further,
Ordered that the judgment rendered under indictment No. 1333-04 is reversed, on the law, andthe matter is remitted to the Supreme Court, Suffolk County, for a new trial on that indictment.
The defendant contends that the Supreme Court erred in refusing to charge the jury on theaffirmative defense to bail jumping under Penal Law § 215.59. We agree. As a general matter,"a court must charge the jury on any claimed defense that is supported by a reasonable view of theevidence which the court must assess in the light most favorable to the defendant" (People v Taylor,80 NY2d 1, 12 [1992]). The defendant bears the burden at trial of establishing the affirmativedefense to bail jumping by a preponderance of the evidence (see Penal Law § 25.00[2]). Here, viewing the evidence in the light most favorable to the defendant (see People v Taylor,80 NY2d at [*2]12), a reasonable view of the evidence supportedissuing the charge on the affirmative defense to bail jumping (see Penal Law § 215.59),and the court should have included the charge in its instructions to the jury. Accordingly, the mattermust be remitted for a new trial on the charge of bail jumping in the first degree contained in indictmentNo. 1333-04. The defendant also contends that this error resulted in a prejudicial spillover effect withrespect to his justification defense regarding the charges contained in indictment No. 2790-02, whichwere tried with the charge of bail jumping contained in indictment No. 1333-04. This contention,however, is without merit and belied by the fact that the jury acquitted the defendant of two countsunder indictment No. 2790-02, including the top count of assault in the first degree (cf. People vDoshi, 93 NY2d 499, 506 [1999]).
As to the remaining convictions of assault in the second degree and criminal possession of aweapon in the fourth degree, the defendant's challenges to the legal sufficiency of the evidence areunpreserved for appellate review, as the defendant's general motions to dismiss at the close of thePeople's case and at the close of all evidence failed to specify any grounds for dismissal (seeCPL 470.05 [2]; People v Nesbitt,41 AD3d 866 [2007]; People vAyala, 36 AD3d 827 [2007]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to disprove the defendant's justification defense and to establish the defendant's guiltbeyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), weare satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The sentence imposed on indictment No. 2790-02 was not excessive (see People v Suitte,90 AD2d 80 [1982]).
In light of our determination on the conviction of bail jumping in the first degree, the defendant'sremaining contentions with respect to that conviction have been rendered academic. Skelos, J.P.,Lifson, Santucci and Balkin, JJ., concur.