| People v Rivera |
| 2013 NY Slip Op 07299 [111 AD3d 1280] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LuisRivera, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), renderedOctober 10, 2006. The judgment convicted defendant, upon jury verdicts, of criminalpossession of a weapon in the second degree and murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, followingseparate jury trials, of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [former (2)]) and murder in the second degree (§ 125.25 [1]). Atthe first trial, the jury found defendant guilty of the weapons offense but could not reacha verdict on the murder count. County Court accepted a partial verdict and, following asecond trial, defendant was found guilty of murder. Defendant contends that, under theprinciples of double jeopardy, he should not have been retried on the murder countbecause the evidence at the first trial was legally insufficient to establish his commissionof that offense, and a guilty verdict would have been against the weight of the evidence.Defendant further contends that the verdict at the second trial is against the weight of theevidence. We reject those contentions.
A conviction is supported by legally sufficient evidence when, viewing the facts inthe light most favorable to the People, " 'there is a valid line of reasoning and permissibleinferences from which a rational jury could have found the elements of the crime provedbeyond a reasonable doubt' " (People v Danielson, 9 NY3d 342, 349 [2007]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Here, a prosecution witnesstestified at the first trial that she saw defendant shoot the victim in the back of the headfrom close range. The witness was unequivocal in her identification of defendant, whomshe had known for three years prior to the shooting. Accepting the testimony of thateyewitness as true, as we must in the context of defendant's challenge to the legalsufficiency of the evidence (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that there is a valid line of reasoning and permissible inferences that could leada rational jury to conclude that defendant intentionally killed the victim and therebycommitted murder in the second degree.
With respect to the weight of the evidence, defendant contends that, although thejury did [*2]not reach a verdict on the murder count at thefirst trial, the People failed to prove his guilt beyond a reasonable doubt and should nothave been given a second opportunity to seek a conviction. Because the jury did notrender a verdict on the murder count, however, there is no verdict from the first trial towhich to apply a weight-of-the-evidence test (cf. People v Mason, 101 AD3d 1659, 1660 [2012],revd on other grounds 21 NY3d 962 [2013]; People v Scerbo, 74 AD3d 1730, 1732-1733 [2010], lvdenied 15 NY3d 757 [2010]). In any event, viewing the evidence in light of theelements of the crime as charged to the jury (see Danielson, 9 NY3d at 349), weconclude that a guilty verdict on the murder count, if one had been rendered at the firsttrial, would not have been against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). We further conclude that the verdict with respect to theweapons offense is not contrary to the weight of the evidence.
As noted, a prosecution witness testified that she saw defendant shoot the victim.Although the witness had been drinking heavily on the night in question and had smokedmarihuana, it cannot be said that her testimony was "so inconsistent or unbelievable as torender it incredible as a matter of law" (People v Black, 38 AD3d 1283, 1285 [2007], lv denied8 NY3d 982 [2007]; seePeople v Smith, 73 AD3d 1469, 1470 [2010], lv denied 15 NY3d 778[2010]). We note that much of the witness's testimony was corroborated by otherwitnesses, several of whom placed defendant at the scene of the crime with whatappeared to be a gun in his hand. Moreover, the evidence established that the victim wasshot in the back of the head with a .380 caliber bullet from a range of five to six feet and,according to several witnesses, defendant was standing behind the victim when he wasshot. Although another person fired two shots from a .45 caliber firearm shortly after thevictim was shot, the shell casings for those bullets were found approximately 50 feetfrom the victim's body, and it is undisputed that the victim was not struck by a .45 caliberbullet.
We further conclude that the verdict at the retrial is not against the weight of theevidence. At the retrial, two witnesses who knew defendant testified that they saw himshoot the victim, and their testimony was amply corroborated by other evidence. As atthe first trial, defendant did not testify and called no witnesses. Under the circumstances,even assuming, arguendo, that a different verdict would not have been unreasonable, weconclude that it cannot be said that the jury failed to give the evidence the weight itshould be accorded (see generally Bleakley, 69 NY2d at 495; People v Gay, 105 AD3d1427, 1427-1428 [2013]).
Finally, defendant's contention that the court failed to ask him whether he wished tomake a statement at sentencing, as required by CPL 380.50 (1), is unpreserved for ourreview (see People v Sharp,56 AD3d 1230, 1231 [2008], lv denied 11 NY3d 900 [2008]), and wedecline to exercise our power to review it as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Present—Scudder, P.J., Centra, Carni,Lindley and Sconiers, JJ.