Opinion
2017–08754 Ind. No. 1841/15
08-18-2021
The PEOPLE, etc., respondent, v. Aasim M. MCPHEE, appellant.
Patricia Pazner, New York, N.Y. (Samuel Barr of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Joseph N. Ferdenzi, and Christopher Blira–Koessler of counsel), for respondent.
Patricia Pazner, New York, N.Y. (Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Joseph N. Ferdenzi, and Christopher Blira–Koessler of counsel), for respondent.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.
DECISION & ORDER ON MOTION Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira Margulis, J.), rendered August 15, 2017, convicting him of burglary in the first degree (three counts), robbery in the first degree, attempted robbery in the first degree (two counts), robbery in the second degree, criminal possession of a weapon in the second degree (six counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing before a different Justice.
The defendant's arguments as to the legal sufficiency of the evidence are unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 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, 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 burglary in the first degree and robbery in the second degree based on an acting in concert theory beyond a reasonable doubt (see Penal Law §§ 20.00 ; 140.30[4]; 160.10[1]). Moreover, in 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 nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record here, 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 contention that the trial justice should have recused himself from presiding over the sentencing proceeding, on the ground that the justice's law clerk was a former Queens County Assistant District Attorney who, in that capacity, had worked on the early stages of this case, is unpreserved for appellate review. We nevertheless reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.05[2] ). For the reasons discussed in our decision and order on an appeal by the defendant's codefendant ( People v. Hymes, 193 A.D.3d 975, 146 N.Y.S.3d 660 ), the trial justice should have recused himself from presiding over the sentencing proceeding (see People v. Suazo, 120 A.D.3d 1270, 992 N.Y.S.2d 138 ). Accordingly, we vacate the sentence imposed, and remit the matter to the Supreme Court, Queens County, for resentencing before a different Justice.
In light of our determination, we need not reach the defendant's contention that the sentence imposed was excessive.
The defendant's remaining contentions are without merit.
DILLON, J.P., HINDS–RADIX, DUFFY and WOOTEN, JJ., concur.