Opinion
2014-09-26
The PEOPLE of the State of New York, Respondent, v. Brian K. HUTCHINGS, Defendant–Appellant. (Appeal No. 1.).
David P. Elkovitch, Auburn, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
David P. Elkovitch, Auburn, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO AND DeJOSEPH, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, bribe receiving in the third degree (Penal Law § 200.10), and in appeal No. 2, he appeals from a judgment convicting him upon a jury verdict of, inter alia, a separate count of bribe receiving in the third degree ( id.).
We reject defendant's contention in both appeal Nos. 1 and 2 that his conviction for bribe receiving in the third degree is not supported by legally sufficient evidence. In each case, the People presented legally sufficient evidence from which the jury could find that defendant accepted free or discounted goods or services from local companies “upon an agreement or understanding” that defendant's “opinion, judgment, action, decision or exercise of discretion as a public servant” would be influenced thereby (Penal Law § 200.10; see People v. Bac Tran, 80 N.Y.2d 170, 175–176, 589 N.Y.S.2d 845, 603 N.E.2d 950, rearg. denied81 N.Y.2d 784, 594 N.Y.S.2d 721, 610 N.E.2d 394; People v. Harper, 145 A.D.2d 933, 933, 536 N.Y.S.2d 301, affd. 75 N.Y.2d 313, 552 N.Y.S.2d 900, 552 N.E.2d 148; People v. Kitsos, 299 A.D.2d 291, 291–292, 750 N.Y.S.2d 68, lv. denied100 N.Y.2d 540, 763 N.Y.S.2d 5, 793 N.E.2d 419; People v. Souvenir, 209 A.D.2d 455, 455–456, 618 N.Y.S.2d 447, lv. denied85 N.Y.2d 914, 627 N.Y.S.2d 337, 650 N.E.2d 1339). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant failed to preserve his contention that he was deprived of his right to a fair trial by prosecutorial misconduct ( seeCPL 470.05 [2] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). Defendant's contention that County Court should have taken judicial notice of 17 NYCRR 820.13 was abandoned by his express agreement to the court's instruction to the jury on the lawful stop of a vehicle ( see People v. Graves, 85 N.Y.2d 1024, 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220; People v. Dennis, 55 A.D.3d 385, 385, 866 N.Y.S.2d 28, lv. denied12 N.Y.3d 783, 879 N.Y.S.2d 59, 906 N.E.2d 1093; see also CPL 470.05[2] ), which conveyed the appropriate legal standard to the jury in any event ( see People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134; People v. Rose, 67 A.D.3d 1447, 1448, 889 N.Y.S.2d 789). We have considered defendant's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.