Opinion
2018–06830 Ind. No. 390/17
10-21-2020
The PEOPLE, etc., respondent, v. Antonio L. SMITH, appellant.
Kristina Heuser, Locust Valley, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Madeline Collins of counsel), for respondent.
Kristina Heuser, Locust Valley, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Madeline Collins of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered May 11, 2018, convicting him of tampering with physical evidence, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged with attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ), assault in the first degree ( Penal Law § 120.10[1] ), assault in the second degree ( Penal Law § 120.05[2] ), two counts of criminal possession of a weapon in the second degree ( Penal Law §§ 265.03[1][b] ; [3] ), criminal possession of a weapon in the third degree ( Penal Law § 265.02[1] ), and tampering with physical evidence ( Penal Law § 215.40[2] ) based upon allegations that he shot the complainant outside of the defendant's home in Freeport. After a jury trial, the defendant was convicted of tampering with physical evidence and acquitted of the other counts. The defendant appeals.
The defendant's contention that the verdict was repugnant because the jury found him guilty of tampering with physical evidence, while acquitting him of all other charges, is unpreserved for appellate review because he failed to raise this issue before the trial court (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Jacobs, 128 A.D.3d 850, 9 N.Y.S.3d 133 ). In any event, the verdict was not repugnant. Viewing the verdict solely in terms of the elements of the offenses as charged to the jury (see People v. Jacobs, 128 A.D.3d at 850–851, 9 N.Y.S.3d 133 ), the acquittals on the counts of attempted murder in the second degree, assault in the first degree, assault in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree did not negate any of the elements of tampering with physical evidence.
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence supporting his conviction of tampering with physical evidence (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of that crime beyond a reasonable doubt.
Contrary to the defendant's contention, the fact that the jury acquitted him of other charges related to the shooting does not render the jury's verdict convicting him of tampering with physical evidence against the weight of the evidence (see People v. Zamfino, 160 A.D.3d 779, 74 N.Y.S.3d 314 ). While the jury's acquittal of the defendant on other counts may be considered by this Court when exercising its factual review power (see People v. Fisher, 104 A.D.3d 868, 869, 963 N.Y.S.2d 122 ; People v. Otway, 71 A.D.3d 1052, 1054, 897 N.Y.S.2d 236 ; People v. Franco, 11 A.D.3d 710, 711, 784 N.Y.S.2d 133 ), the Court is "not required to assume the basis for any implied inconsistencies in such mixed verdicts" ( People v. Choi, 137 A.D.3d 808, 809, 26 N.Y.S.3d 333 ; see People v. Rayam, 94 N.Y.2d 557, 563, 708 N.Y.S.2d 37, 729 N.E.2d 694 ). Upon fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's remaining contention is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit.
MASTRO, J.P., HINDS–RADIX, MALTESE and IANNACCI, JJ., concur.