| People v Lobban |
| 2009 NY Slip Op 01137 [59 AD3d 566] |
| February 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lorenzo Lobban, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Lauren DelGiorno of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Calabrese,J.), rendered April 17, 2007, convicting him of criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree (two counts), reckless endangermentin the first degree, and menacing in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, there was sufficient evidence to support hisconviction of reckless endangerment in the first degree. This is not a case in which thedefendant's conduct could only be interpreted as intentional (cf. People v Payne, 3 NY3d 266, 271 [2004]). Rather, based on theevidence presented in this case, a rational jury could have concluded that, in firing a gun in thedirection of the complainants' retreating car, without actually hitting the car or its occupants withany bullets, the defendant created a grave risk of death under circumstances evincing a depravedindifference to human life, but did not specifically intend to kill or injure the complainants.
The defendant's argument that the verdict was repugnant is unpreserved for appellate reviewbecause he failed to raise the issue before the jury was discharged, when the defect could havebeen remedied by resubmitting the charges to the jury (see People v Stahl, 53 NY2d1048, 1050 [1981]; People vMoses, 36 AD3d 720 [2007]). In any event, the acquittal on the prohibited use of aweapon charge did not render the verdict repugnant. The jury rationally could have found thatthe defendant did not fire a gun directly at the complainant's vehicle (see Penal Law§ 265.35), requiring an acquittal on that charge, but, nevertheless, that he had dischargedthe gun in such a manner that the complainants' car [*2]waseither "in or near the line of fire" (People v Bennett, 193 AD2d 808, 809 [1993][emphasis added]), which supported his conviction of reckless endangerment in the first degree(see Penal Law § 120.25). Further, the charges of criminal possession of a weaponin the second degree and criminal possession of a weapon in the third degree did not requireproof that the defendant discharged his firearm (see Penal Law §§ 265.03,265.02, 120.14). Accordingly, the acquittal on the prohibited use of a weapon charge was notconclusive as to a necessary element of any of the other offenses (see People v Trappier,87 NY2d 55, 58 [1995]; People v Tucker, 55 NY2d 1, 7 [1981]).
Despite the defendant's disagreement with the "reasonable and legitimate strategy" employedby his counsel, he was not denied the effective assistance of counsel (People vBenevento, 91 NY2d 708, 713 [1998]; see People v Henry, 95 NY2d 563, 565[2000]).
The defendant's remaining contentions are without merit. Rivera, J.P., Angiolillo, Carni andMcCarthy, JJ., concur.