| People v Hampton |
| 2011 NY Slip Op 05522 [85 AD3d 1055] |
| June 21, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v GradyHampton, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and BarbaraKornblau of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Carter, J.,at trial; Palmieri, J., at sentencing), rendered April 23, 2010, convicting him of murder in thesecond degree and criminal possession of a weapon in the second degree (two counts), upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was accused of killing Kareem Sapp. At trial, after the prosecution rested, thedefendant moved to dismiss for failure to make out a prima facie case. The Supreme Courtcommented on the prosecution's case, but reserved decision on the motion. The defendantpresented evidence and, after he rested his case, again moved for a trial order of dismissal. TheSupreme Court indicated that it had "concerns" about "whether or not the People have met theirburden," but again reserved decision. The jury found the defendant guilty of murder in the seconddegree and criminal possession of a weapon in the second degree (two counts). After the jury wasexcused, the Supreme Court "suggest[ed]" that the defendant "put [his motion] on papers," andthe defendant agreed to do so.
On a subsequent date, the trial judge announced that, for reasons stated, he would recusehimself. The defendant moved for an order pursuant to CPL 290.10 (1) and 330.30 (1) "grantingthe defendant[']s prior applications for a trial order of dismissal or in the alternative, setting asidethe jury verdict of guilty . . . based upon the lack of evidence . . . forwhich the defendant was convicted and which, upon an appeal, would require reversal ormodification of the judgment as a matter of law by an Appellate Court." The defendant urged that"[s]hould the Judge actually recuse itself from deciding the above, which is this Court [']s statedintent, then a mistrial must be granted" (see id.). In a subsequent order, the trial judgerecused himself and referred the matter to the Supervising Judge. The case was thereafterreassigned to Justice Palmieri in light of the Trial Judge's recusal. Justice Palmieri denied thedefendant's motion (see People vHampton, 27 Misc 3d 492 [2010]), and denied the defendant's subsequent motiondenominated as one to renew and reargue. The defendant appeals from the judgment ofconviction. We affirm.
The defendant argues that since his motion for a trial order of dismissal was argued before[*2]Justice Carter, Justice Palmieri, in determining his motion,violated Judiciary Law § 21. We disagree. "Since purely legal questions were involved, alldiscussion was recorded in the minutes, and the successor Judge was not called upon to weighconflicting testimony or assess credibility" (Plunkett v Emergency Med. Serv. of N.Y.City, 234 AD2d 162, 163 [1996]; see Gayle v Port Auth. of N.Y. & N.J., 6 AD3d 183 [2004]; cf.People v Nenni, 261 AD2d 900 [1999]; State of New York v General Elec. Co., 215AD2d 928 [1995]; People v Cameron, 194 AD2d 438 [1993]; People v Hooper,22 AD2d 1006 [1964]), Judiciary Law § 21 did not bar Justice Palmieri from determiningthe defendant's motion.
Further, the defendant argues that the verdict of guilt was not supported by legally sufficientevidence and was against the weight of the credible evidence. We disagree. Viewing the evidencein the light most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]). Mastro, J.P., Florio, Belen and Chambers, JJ., concur.