Opinion
791 KA 19-01433
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Lester SHAFFER, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE, DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE, DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ) and attempted criminal sale of a controlled substance in the third degree (§§ 110.00, 220.39 [1]), for possessing and attempting to sell morphine. Defendant contends that the verdict is against the weight of the evidence. We reject that contention. In performing a weight of the evidence review, this Court essentially sits as a thirteenth juror, and we must "weigh the evidence in light of the elements of the crime[s] as charged to the other jurors" ( People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Here, viewing the evidence in light of the elements of the abovementioned crimes as charged to the jury (see id. ), we conclude that the verdict 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] ). "Although a different result would not have been unreasonable, the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded" ( People v. Dame , 144 A.D.3d 1625, 1626, 42 N.Y.S.3d 514 [4th Dept. 2016], lv denied 29 N.Y.3d 948, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017] [internal quotation marks omitted]; see People v. Ruiz , 159 A.D.3d 1375, 1375, 73 N.Y.S.3d 308 [4th Dept. 2018] ). Finally, contrary to defendant's further contention, the sentence is not unduly harsh or severe.