Opinion
672 KA 19-01175
10-01-2021
The PEOPLE of the State of New York, Respondent, v. Victor Vazquez MELENDEZ, Defendant-Appellant. (Appeal No. 1.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM G. PIXLEY OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM G. PIXLEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts by reversing those parts convicting defendant of criminal possession of a weapon in the second degree and dismissing counts 3, 5, 8, 11, 13, 16, and 19 of the indictment, and as modified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of seven counts of criminal possession of a weapon (CPW) in the second degree ( Penal Law § 265.03 [3] ) and five counts of CPW in the third degree (§ 265.02 [8]) and, in appeal No. 2, defendant appeals from a judgment convicting him upon a jury verdict of criminal sale of a firearm in the first degree (§ 265.13 [1]). In appeal No. 1, defendant contends and the People correctly concede that the verdict is against the weight of the evidence with respect to those counts charging him with CPW in the second degree inasmuch as the People presented no evidence that the firearms were loaded at the time they were in defendant's possession (see generally People v. Santiago , 195 A.D.3d 1460, 1460-1461, 147 N.Y.S.3d 848 [4th Dept. 2021] ). We therefore modify the judgment in appeal No. 1 by reversing those parts convicting defendant of CPW in the second degree and dismissing counts 3, 5, 8, 11, 13, 16, and 19 of the indictment (see People v. Box , 181 A.D.3d 1238, 1241, 119 N.Y.S.3d 650 [4th Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 24, 149 N.E.3d 862 [2020], cert denied ––– U.S. ––––, 141 S.Ct. 1099, 208 L.Ed.2d 548 [2021] ). In light of our determination, we do not address defendant's alternative contention in appeal No. 1.
In appeal No. 2, defendant contends that the verdict is against the weight of the evidence with respect to the count charging him with criminal sale of a firearm in the first degree. Viewing the evidence in light of the elements of the crime 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 [2007] ), we conclude that the verdict with respect to that count 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 [1987] ). Finally, we note that the certificate of conviction in appeal No. 2 incorrectly reflects that defendant was convicted upon a plea of guilty, and it must therefore be amended to reflect that he was convicted upon a jury verdict (see People v. Baldwin , 173 A.D.3d 1748, 1749-1750, 103 N.Y.S.3d 222 [4th Dept. 2019], lv denied 34 N.Y.3d 928, 109 N.Y.S.3d 736, 133 N.E.3d 440 [2019] ).