The Appellate Division, Second Department affirmed Wall's conviction, People v. Wall, 938 N.Y.S.2d 449 (2d Dep't 2012) ("Wall I"), and the New York Court of Appeals denied his application for leave to appeal, People v. Wall, 968 N.E.2d 1009 (N.Y. 2012) (Smith, J.) ("Wall II").
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, 348, 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 (seePeople v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record here, we are satisfied that the defendant's convictions were not against the weight of the evidence.The defendant's contention that the counts of criminal possession of a weapon in the second degree were multiplicitous is unpreserved for appellate review (see CPL 470.05[2] ; People v. Bonilla, 151 A.D.3d 735, 737, 58 N.Y.S.3d 48 ; People v. Wall, 92 A.D.3d 812, 813, 938 N.Y.S.2d 449 ) and, in any event, without merit (seePeople v. Saunders, 290 A.D.2d 461, 463, 736 N.Y.S.2d 90 ).By affirmatively agreeing to reorder the first two counts of the indictment on the verdict sheet, the defendant waived his right to challenge the same (seePeople v. Richardson, 88 N.Y.2d 1049, 1051, 650 N.Y.S.2d 633, 673 N.E.2d 918 ; People v. McCoy, 100 A.D.3d 1422, 1423, 953 N.Y.S.2d 788 ).
The defendant's contention that the counts of criminal possession of a weapon in the second degree were multiplicitous is unpreserved for appellate review (see CPL 470.05[2]; People v Bonilla, 151 AD3d 735, 737; People v Wall, 92 AD3d 812, 813) and, in any event, without merit (see People v Saunders, 290 AD2d 461, 463). By affirmatively agreeing to reorder the first two counts of the indictment on the verdict sheet, the defendant waived his right to challenge the same (see People v Richardson, 88 NY2d 1049, 1051; People v McCoy, 100 AD3d 1422, 1423).
The People correctly concede that two of the defendant's convictions of assault in the second degree must be vacated, and those counts of the indictment dismissed, as they are inclusory concurrent counts of assault in the first degree (see CPL 300.30[4]; 300.40[3][b]; Penal Law §§ 120.05[1], [2]; 120.10[1]; People v LaConte, 45 AD3d 699, 699-700; People v DeFreitas, 19 AD3d 506, 507). However, the defendant's contention that the counts of assault in the first degree were multiplicitous is unpreserved for appellate review (see CPL 470.05 [2]; People v Wall, 92 AD3d 812, 813) and, in any event, without merit (see People v Saunders, 290 AD2d 461, 463).
The People correctly concede that two of the defendant's convictions of assault in the second degree must be vacated, and those counts of the indictment dismissed, as they are inclusory concurrent counts of assault in the first degree (see CPL 300.30[4] ; 300.40[3] [b]; Penal Law §§ 120.05[1], [2] ; 120.10[1]; People v. LaConte, 45 A.D.3d 699, 699–700, 844 N.Y.S.2d 881 ; People v. DeFreitas, 19 A.D.3d 506, 507, 797 N.Y.S.2d 117 ). However, the defendant's contention that the counts of assault in the first degree were multiplicitous is unpreserved for appellate review (see CPL 470.05[2] ; People v. Wall, 92 A.D.3d 812, 813, 938 N.Y.S.2d 449 ) and, in any event, without merit (see People v. Saunders, 290 A.D.2d 461, 463, 736 N.Y.S.2d 90 ). Contrary to the defendant's contention, the verdict was not repugnant.
By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given" (People v Hardy, 26 NY3d 245, 249 [2015] [citations omitted]). Direct evidence, which "proves directly a disputed fact without requiring an inference to be made" (id. at 251), may include, among other things, eyewitness testimony attesting to a defendant's participation in the crime (see e.g. People v Daddona, 81 NY2d 990, 992-993 [1993]; People v Wall, 92 AD3d 812, 813 [2012], lv denied 18 NY3d 999 [2012]; People v Bradley, 72 AD3d 1628, 1629 [2010], lv denied 15 NY3d 772 [2010]; People v Roldan, 211 AD2d 366, 367-368 [1995], affd 88 NY2d 826 [1996]) or a defendant's incriminating statements to others if such statements "constitute[] a relevant admission of guilt" (People v Guidice, 83 NY2d 630, 636 [1994] [internal quotation marks and citation omitted]; see e.g. People v Griffin, 28 AD3d 578, 579 [2006], lv denied 7 NY3d 789 [2006]; People v Rodriguez, 259 AD2d 713, 714 [1999], lv denied 93 NY2d 928 [1999]; People v Barnes, 162 AD2d 1039, 1040 [1990], lv denied 76 NY2d 890 [1990]). Circumstantial evidence, on the other hand, requires the trier of fact "to make a number of logical leaps" (People v Carter, 97 AD3d 492, 496 [2012]) or to draw "additional inferences" (People v Saxton, 75 AD3d 755, 758 [2010], lv denied 15 NY3d 924 [2010]) from the proof presented in order to connect the defendant to the charged crimes (see generally People v Wlasuik, 1
As the Court of Appeals recently reiterated, "[i]t is well settled that a trial court must grant a defendant's request for a circumstantial evidence charge when the proof of the defendant's guilt rests solely on circumstantial evidence. By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given" (People v. Hardy, 26 N.Y.3d 245, 249, 22 N.Y.S.3d 377, 43 N.E.3d 734 [2015] [citations omitted] ). Direct evidence, which "proves directly a disputed fact without requiring an inference to be made" (id. at 251, 22 N.Y.S.3d 377, 43 N.E.3d 734 ), may include, among other things, eyewitness testimony attesting to a defendant's participation in the crime (see e.g. People v. Daddona, 81 N.Y.2d 990, 992–993, 599 N.Y.S.2d 530, 615 N.E.2d 1014 [1993] ; People v. Wall, 92 A.D.3d 812, 813, 938 N.Y.S.2d 449 [2012], lv. denied 18 N.Y.3d 999, 945 N.Y.S.2d 653, 968 N.E.2d 1009 [2012] ; People v. Bradley, 72 A.D.3d 1628, 1629, 899 N.Y.S.2d 494 [2010], lv. denied 15 N.Y.3d 772, 907 N.Y.S.2d 460, 933 N.E.2d 1053 [2010] ; People v. Roldan, 211 A.D.2d 366, 367–368, 627 N.Y.S.2d 1014 [1995], affd. 88 N.Y.2d 826, 643 N.Y.S.2d 960, 666 N.E.2d 553 [1996] ) or a defendant's incriminating statements to others if such statements "constitute[ ] a relevant admission of guilt" (People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] [internal quotation marks and citation omitted]; see e.g. People v. Griffin, 28 A.D.3d 578, 579, 816 N.Y.S.2d 86 [2006], lv. denied 7 N.Y.3d 789, 821 N.Y.S.2d 819, 854 N.E.2d 1283 [2006] ; People v. Rodriguez, 259 A.D.2d 713, 714, 688 N.Y.S.2d 165 [1999], lv. denied 93 N.Y.2d 928, 693 N.Y.S.2d 512, 715 N.E.2d 515 [1999] ; People v. Barnes, 162 A.D.2d 1039, 1040, 558 N.Y.S.2d 339 [1990], lv. denied 76 N.Y.2d 890, 561 N.Y.S.2d 553, 562 N.E.2d 878 [1990] ).
This contention is unpreserved for appellate review, since the defendant did not request a circumstantial evidence charge or object to the charge as given (see CPL 470.05[2]; People v Smith, 127 AD3d 790; People v Joseph, 114 AD3d 878, 879; People v Wall, 92 AD3d 812, 813; People v Reyes, 45 AD3d 785, 786; People v Hall, 181 AD2d 791). In any event, this contention is without merit, as the evidence was not wholly circumstantial.
The defendant contends that the evidence of his guilt was wholly circumstantial and that the Supreme Court erred in failing to give a circumstantial evidence charge. This contention is unpreserved for appellate review, since the defendant did not request a circumstantial evidence charge or object to the charge as given (see CPL 470.05[2] ; People v. Smith, 127 A.D.3d 790, 6 N.Y.S.3d 282 ; People v. Joseph, 114 A.D.3d 878, 879, 980 N.Y.S.2d 805 ; People v. Wall, 92 A.D.3d 812, 813, 938 N.Y.S.2d 449 ; People v. Reyes, 45 A.D.3d 785, 786, 847 N.Y.S.2d 203 ; People v. Hall, 181 A.D.2d 791, 581 N.Y.S.2d 825 ). In any event, this contention is without merit, as the evidence was not wholly circumstantial.
The defendant's contention that the evidence of his guilt was wholly circumstantial and that the trial court erred in failing to give a circumstantial evidence charge is unpreserved for appellate review, as the defendant did not request a circumstantial evidence charge or object to the charge as given ( seeCPL 470.05[2]; People v. Joseph, 114 A.D.3d 878, 879, 980 N.Y.S.2d 805; People v. Wall, 92 A.D.3d 812, 813, 938 N.Y.S.2d 449; People v. Reyes, 45 A.D.3d 785, 786, 847 N.Y.S.2d 203; People v. Hall, 181 A.D.2d 791, 581 N.Y.S.2d 825). In any event, any error was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to the defendant's conviction ( see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).