| People v Hughes |
| 2017 NY Slip Op 07094 [154 AD3d 468] |
| October 10, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Derrick Hughes, Appellant. |
Marianne Karas, Thornwood, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered February14, 2014, convicting defendant, after a jury trial, of burglary in the second degree, and sentencinghim, as a second violent felony offender, to a term of seven years, and also convicting him ofviolation of probation, revoking a prior sentence of probation and resentencing him to aconcurrent term of one year, and judgment, same court (Maxwell Wiley, J.), rendered September19, 2012, convicting defendant, upon his plea of guilty, of assault in the second degree, andsentencing to a term of six months concurrent with five years' probation, unanimouslyaffirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interestof justice. As an alternative holding, we reject it on the merits. We also find that the verdict wasnot against the weight of the evidence. There is no basis for disturbing the jury's credibilitydeterminations. Regardless of whether it is viewed as a legal insufficiency claim or a repugnantverdicts claim, defendant's argument that his acquittal of robbery rendered his burglaryconviction legally defective was not raised at a time when it could have been cured byresubmission to the jury, and it is thus unpreserved (see generally People v Gray, 86NY2d 10, 20-21 [1995]). In any event, the verdict was not legally repugnant (see People v Muhammad, 17 NY3d532, 540 [2011]), because, under the court's charge, the jury could have found defendantguilty of burglary (under a theory of intent to commit an unspecified crime), but not guilty ofrobbery, and the factually mixed verdict does not result in legal insufficiency (see People v Abraham, 22 NY3d140, 146-147 [2013]). While we may consider an alleged factual inconsistency in a verdictin performing our weight of the evidence review (see People v Rayam, 94 NY2d 557, 563n [2000]), and weight of the evidence arguments do not require preservation (see People v Danielson, 9 NY3d342, 348-349 [2007]), we find it "imprudent to speculate concerning the factualdeterminations that underlay the verdict" (People v Horne, 97 NY2d 404, 413 [2002];see also People v Hemmings, 2 NY3d 1, 5 n [2004]).
The court properly declined defendant's request to charge the jury that the People wererequired to prove that defendant entered unlawfully with the intent to commit robbery. ThePeople did not limit their theory of the case to any particular intended crime (compare Peoplev Barnes, 50 NY2d 375, 379 n 3 [1980]). While the People argued in summation thatrobbery was the crime that defendant intended to commit, that did not constitute a limitation onthe theory of prosecution (see People vRamadhan, 50 AD3d 339 [1st Dept 2008]; People v Bess, 107 AD2d 844, 846[3d Dept 1985]). The record does not support defendant's assertion that, at a presummationsconference, the court itself expressly limited the People to a robbery theory. In any event, therewas no unfairness, because it was clear to the jury that if it accepted defendant's theory of thecase, it would be required to acquit him of both burglary and robbery.
With regard to defendant's 2012 conviction of second-degree assault, his challenges to hisguilty plea are unpreserved (see People vConceicao, 26 NY3d 375, 382 [2015]) and we [*2]decline to review them in the interest of justice. As an alternativeholding, we also reject them on the merits (see People v Monk, 21 NY3d 27, 32-33 [2013]).Concur—Richter, J.P., Gische, Kapnick, Kahn and Kern, JJ.