| People v Ramirez |
| 2016 NY Slip Op 04875 [140 AD3d 545] |
| June 21, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v George Ramirez, Appellant. |
Leonard J. Levenson, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel),for respondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered May 6,2013, convicting defendant, after a jury trial, of two counts of criminal possession of aweapon in the second degree, and sentencing him, as a persistent violent felony offender,to concurrent terms of 18 years to life, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing thejury's credibility determinations. The course of conduct of defendant and his companion,viewed as a whole, supports an inference of defendant's accessorial liability for thepossession of a weapon actually wielded by the companion (see Penal Law§ 20.00). The fact that the jury acquitted defendant of attempted robberydoes not warrant a different conclusion (see People v Abraham, 22 NY3d 140, 146-147 [2013];People v Rayam, 94 NY2d 557 [2000]).
Defendant was properly adjudicated a persistent violent felony offender. The courtcorrectly ruled that defendant was foreclosed from contesting the constitutionality of his2000 conviction, which had already been relied upon, in 2005, in adjudicating him asecond violent felony offender (see CPL 400.15 [7] [b]; [8]; People v Odom, 63 AD3d408 [1st Dept 2009], lv denied 13 NY3d 798 [2009]). Although the minutesof the 2005 plea have been irretrievably lost, defendant has not established a sufficientbasis for a reconstruction hearing (see People v Parris, 4 NY3d 41, 49-50 [2004]).
An isolated portion of the prosecutor's summation that went beyond the evidence didnot deprive defendant of a fair trial. Defendant's claims regarding evidentiary matters areunpreserved, and we decline to review them in the interest of justice. As an alternativeholding, we find that the court properly exercised its discretion in denying defendant'sbelated mistrial motion raising some of these issues and that any errors were harmless(see People v Crimmins, 36 NY2d 230 [1975]). Concur—Mazzarelli, J.P.,Andrias, Saxe, Gische and Kahn, JJ.