Opinion
February 18, 1999
Appeal from the Supreme Court, Bronx County (Steven Barrett, J.).
Defendant failed to preserve his claim that the portion of the jury's verdict convicting him of intentional murder as to one victim and acquitting him of that crime as to the other five victims was repugnant and we decline to review it in the interest of justice. Were we to review this claim, we would find no repugnancy in light of the court's charge (People v. Tucker, 55 N.Y.2d 1, 7). We reject defendant's related claim that this portion of the verdict was against the weight of the evidence. As this Court has repeatedly held, "[d]efendant's acquittal of certain counts does not undermine the sufficiency and weight of the evidence supporting the counts upon which he was convicted" (People v. Smith, 245 A.D.2d 23, lv denied 91 N.Y.2d 930), and defendant's argument to the contrary "calls for an impermissible invasion of the jury's deliberative processes". (People v. Rivera, 201 A.D.2d 377, lv denied 83 N.Y.2d 875.) In any event, the jury was entitled to conclude, based on the evidence before it, that in addition to being guilty of felony murder as to all victims, defendant was also guilty, of intentional murder and conspiracy with respect to one victim.
Concur — Sullivan, J. P., Ellerin, Lerner and Rubin, JJ.