Opinion
2011–05134 Ind.No. 09–01268
02-20-2019
The PEOPLE, etc., Respondent, v. Glenford NICKEY, Appellant.
Paul P. Martin, New York, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (John J. Carmody, Carmel, William C. Milaccio, Kew Gardens, and Steven A. Bender of counsel), for respondent.
Paul P. Martin, New York, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (John J. Carmody, Carmel, William C. Milaccio, Kew Gardens, and Steven A. Bender of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Albert Lorenzo, J.), rendered March 30, 2011, as amended April 27, 2011, convicting him of insurance fraud in the third degree, offering a false instrument for filing in the first degree (two counts), and falsifying business records in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment, as amended, is modified, on the law, by vacating the conviction of insurance fraud in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment, as amended, is affirmed.
As the People correctly concede, the conviction of insurance fraud in the third degree and the sentence imposed thereon must be vacated, and that charge dismissed pursuant to People v. Boothe, 16 N.Y.3d 195, 919 N.Y.S.2d 498, 944 N.E.2d 1137.
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 offering a false instrument for filing in the first degree (two counts) and falsifying business records in the first degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt on those counts was not against the weight of the evidence (see CPL 470.15[5] ).
The defendant's contention that the verdict convicting him of offering a false instrument for filing in the first degree (two counts) and falsifying business records in the first degree was repugnant to his acquittal of grand larceny in the third degree is unpreserved for appellate review, as he failed to raise the issue before discharge of the jury (see People v. Carter , 21 A.D.3d 1295, 1296, 801 N.Y.S.2d 464, affd 7 N.Y.3d 875, 826 N.Y.S.2d 588, 860 N.E.2d 50 ). In any event, the contention is without merit (see People v. Gardner , 164 A.D.3d 602, 78 N.Y.S.3d 689 ).
The defendant was afforded meaningful representation at trial (see People v. Henry , 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112 ; 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, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's remaining contention is without merit.
DILLON, J.P., CHAMBERS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.