| People v Mendez |
| 2011 NY Slip Op 07919 [89 AD3d 496] |
| November 10, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v CesarMendez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (John B.F. Martin of counsel), forrespondent.
Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), rendered September15, 2009, as amended October 8, 2009, convicting defendant, after a jury trial, of burglary in thefirst degree (two counts), robbery in the first degree (two counts), robbery in the second degree,and kidnapping in the second degree (two counts), and sentencing him, as a second felonyoffender, to an aggregate term of 15 years, unanimously affirmed.
Defendant's challenge to the sufficiency of the evidence is unpreserved and we decline toreview it in the interest of justice. As an alternative holding, we find that the verdict was basedon legally sufficient evidence. We also find that the verdict was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility. Defendant's fingerprint found on a piece of duct tape used to tie up one ofthe victims was sufficient to support the conviction (see People v Steele, 287 AD2d 321,322 [2001], lv denied 97 NY2d 682 [2001]). The circumstances negated any reasonablepossibility that defendant innocently placed his fingerprint on the outer surface of the roll of ducttape on some hypothetical occasion, and that the same part of the tape he touched ended up beingused in the crime.
Furthermore, there was other evidence of defendant's guilt, consisting of defendant's recordedjailhouse telephone conversations, and defendant's challenges to the admissibility of thisevidence are without merit. The jury could have reasonably interpreted these conversations asevincing a consciousness of guilt (see People v Yazum, 13 NY2d 302 [1963]), as well ascircumstantially implicating defendant in the crime. For example, at one point defendant referredto someone as "the one that did it with me and [another person]."
We perceive no basis for reducing the sentence.[*2]
Defendant's remaining contentions are unpreserved andwe decline to review them in the interest of justice. As an alternative holding, we also reject themon the merits. Concur—Tom, J.P., Andrias, Acosta, Freedman and Richter, JJ.