People v. Kearney

15 Citing cases

  1. Kearney v. Graham

    15-CV-4829 (CBA) (E.D.N.Y. Sep. 24, 2018)

    On September 10, 2003, Kearney was sentenced to a term of twenty years' imprisonment. (Id. at 3-4) Kearney's sentence and conviction were affirmed on direct appeal, see People v. Kearney, 25 A.D.3d 622 (2d Dept. 2006); People v. Kearney, 6 N.Y.3d 849 (2006), and Kearney's collateral challenges to his conviction and sentence failed both in his state-court ยง 440.10 proceedings, (see Resp Mem. at 4-5), and on federal habeas review, Kearney v. Graham, 06-cv-6305, D.E. # 27 (E.D.N.Y. Oct. 30, 2008). On February 28, 2012, the Department of Correctional Services notified the New York Supreme Court that the court had failed to impose post-release supervision and that re-sentencing pursuant to ยง 601-d of the New York Correction Law was necessary to correct the error.

  2. People v. Mairs

    2018 N.Y. Slip Op. 310 (N.Y. App. Div. 2018)

    The defendant's current challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since he failed to advance his present arguments as a basis for dismissal in the trial court (see CPL 470.05[2]; People v Gray, 86 NY2d 10; People v Kearney, 25 AD3d 622, 623). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant's guilt of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, based on an acting-in-concert theory (see Penal Law ยงยง 20.00; 125.15[1]; 265.03[1][b]; 120.25).

  3. People v. Mairs

    157 A.D.3d 818 (N.Y. App. Div. 2018)   Cited 9 times

    requests, commands, importunes, or intentionally aids such person to engage in such conductโ€™ " ( People v. Carpenter, 138 A.D.3d 1130, 1131, 30 N.Y.S.3d 299, quoting Penal Law ยง 20.00 ; seePeople v. Scott, 25 N.Y.3d 1107, 1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 ). "Inasmuch as the statute requires that the accomplice act with the mental culpability required for the commission of the underlying crime, an accomplice must have a shared intent, or โ€˜community of purposeโ€™ with the principal" ( People v. Carpenter, 138 A.D.3d at 1131, 30 N.Y.S.3d 299, quoting People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 ; seePeople v. Scott, 25 N.Y.3d at 1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 ).The defendant's current challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since he failed to advance his present arguments as a basis for dismissal in the trial court (see CPL 470.05[2] ; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Kearney, 25 A.D.3d 622, 623, 806 N.Y.S.2d 885 ). In any event, viewing the evidence in the light most favorable to the prosecution (seePeople v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant's guilt of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, based on an acting-in-concert theory (see Penal Law ยงยง 20.00 ; 125.15[1]; 265.03[1] [b]; 120.25).

  4. People v. McCaw

    137 A.D.3d 813 (N.Y. App. Div. 2016)   Cited 26 times

    Contrary to the defendant's contention, defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; People v. Dolan, 2 A.D.3d 745, 768 N.Y.S.2d 654 ; People v. Groonell, 256 A.D.2d 356, 357, 682 N.Y.S.2d 226 ). The defendant's challenge to the legal sufficiency of the evidence with respect to the charge of criminal possession of a weapon in the second degree is not preserved for appellate review (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 ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Kearney, 25 A.D.3d 622, 806 N.Y.S.2d 885 ; People v. Butler, 265 A.D.2d 487, 697 N.Y.S.2d 633 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 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 criminal possession of a weapon in the second degree beyond a reasonable doubt.

  5. People v. McCaw

    2016 N.Y. Slip Op. 1510 (N.Y. App. Div. 2016)

    The defendant's challenge to the legal sufficiency of the evidence with respect to the charge of criminal possession of a weapon in the second degree is not preserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492; People v Gray, 86 NY2d 10, 19; People v Kearney, 25 AD3d 622; People v Butler, 265 AD2d 487). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the second degree beyond a reasonable doubt.

  6. People v. Campbell

    137 A.D.3d 807 (N.Y. App. Div. 2016)   Cited 3 times

    The defendant's contention that a recorded conversation between himself and his codefendant should not have been admitted in evidence at trial, and a transcript thereof should not have been offered as an aid to the jury, is without merit for the reasons set forth in our determination of his codefendant's appeal.The defendant's challenge to the legal sufficiency of the evidence with respect to the charges of criminal possession of a weapon in the second degree, aggravated unlicensed operation of a motor vehicle in the second degree, and speeding, is not preserved for appellate review (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 ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Kearney, 25 A.D.3d 622, 806 N.Y.S.2d 885 ; People v. Butler, 265 A.D.2d 487, 697 N.Y.S.2d 633 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

  7. People v. Campbell

    2016 N.Y. Slip Op. 1506 (N.Y. App. Div. 2016)

    The defendant's challenge to the legal sufficiency of the evidence with respect to the charges of criminal possession of a weapon in the second degree, aggravated unlicensed operation of a motor vehicle in the second degree, and speeding, is not preserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492; People v Gray, 86 NY2d 10, 19; People v Kearney, 25 AD3d 622; People v Butler, 265 AD2d 487). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

  8. People v. Ambroise

    2015 N.Y. Slip Op. 8426 (N.Y. App. Div. 2015)

    The defendant's contention that the evidence was legally insufficient to support the convictions of attempted murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review (see CPL 470.15[2]; People v Hawkins, 11 NY3d 484, 492; People v Gray, 86 NY2d 10, 19; People v Martinez, 116 AD3d 983; People v Kearney, 25 AD3d 622; People v Butler, 265 AD2d 487). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient establish the defendant's guilt of those crimes beyond a reasonable doubt (see People v Callicut, 101 AD3d 1256, 1258; People v Bryant, 36 AD3d 517; People v Lewis, 277 AD2d 603; People v Holmes, 260 AD2d 942, 943). Contrary to the defendant's contention that the evidence was insufficient to prove that he intended to kill the victim, his intent may be inferred from his conduct and the surrounding circumstances (see People v Bracey, 41 NY2d 296, 301; People v Mutterperl, 97 AD3d 699; People v Holmes, 260 AD2d at 943).

  9. People v. Ambroise

    133 A.D.3d 770 (N.Y. App. Div. 2015)   Cited 4 times

    The defendant's contention that the evidence was legally insufficient to support the convictions of attempted murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review (see CPL 470.15[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Martinez, 116 A.D.3d 983, 983 N.Y.S.2d 839; People v. Kearney, 25 A.D.3d 622, 806 N.Y.S.2d 885; People v. Butler, 265 A.D.2d 487, 697 N.Y.S.2d 633). 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 establish the defendant's guilt of those crimes beyond a reasonable doubt (see People v. Callicut, 101 A.D.3d 1256, 1258, 956 N.Y.S.2d 607; People v. Bryant, 36 A.D.3d 517, 828 N.Y.S.2d 360; People v. Lewis, 277 A.D.2d 603, 714 N.Y.S.2d 830; People v. Holmes, 260 A.D.2d 942, 943, 690 N.Y.S.2d 292). Contrary to the defendant's contention that the evidence was insufficient to prove that he intended to kill the victim, his intent may be inferred from his conduct and the surrounding circumstances (see People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094; People v. Mutterperl, 97 A.D.3d 699, 948 N.Y.S.2d 383; People v. Holmes, 260 A.D.2d at 943, 690 N.Y.S.2d 292). Moreover, upon our independent review of the evidence pursu

  10. People v. Martinez

    116 A.D.3d 983 (N.Y. App. Div. 2014)   Cited 13 times

    The defendant contends that the evidence was legally insufficient to establish his guilt on either count of robbery in the second degree because the People failed to establish that he forcibly stole any property ( seePenal Law ยง 160.10). However, since the defendant did not advance this argument with any specificity before the trial court, it is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;People v. Kearney, 25 A.D.3d 622, 806 N.Y.S.2d 885). 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 that the defendant forcibly stole the complainant's cell phone.