Opinion
No. 2018-14945 Ind. No. 140/16
08-17-2022
The People of the State of New York, respondent, v. Tyrone Wynn, appellant.
Randall Richards, Bronxville, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Jill Oziemblewski of counsel), for respondent.
Randall Richards, Bronxville, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Jill Oziemblewski of counsel), for respondent.
COLLEEN D. DUFFY, J.P. VALERIE BRATHWAITE NELSON PAUL WOOTEN JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Anne E. Minihan, J.), rendered November 13, 2018, convicting him of criminal possession of a weapon in the second degree (three counts), criminal possession of a controlled substance in the third degree (two counts), criminally using drug paraphernalia in the second degree (two counts), and criminal possession of marihuana in the fifth degree, upon a jury verdict, and imposing sentence.
ORDERED that the appeal from so much of the judgment as convicted the defendant of criminal possession of marihuana in the fifth degree is dismissed as academic; and it is further, ORDERED that the judgment is affirmed insofar as reviewed.
The defendant's conviction of criminal possession of marihuana in the fifth degree "'became a nullity by operation of law, independently of any appeal, and without requiring any action by this [c]ourt,'" pursuant to CPL 160.50(5) (as added by L 2019, ch 131 [eff Aug. 28, 2019]) (People v Johnson, 73 Misc.3d 127 [A], 2021 NY Slip Op 50885[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]), quoting People v Disano, 67 Misc.3d 131 [A], 2020 NY Slip Op 59439[U], *1 [App Term, 1st Dept]). Consequently, the appeal from so much of the judgment as convicted the defendant of criminal possession of marihuana in the fifth degree must be dismissed as academic (see People v Hay, __ A.D.3d __, 2022 NY Slip Op 04737 [2d Dept]; People v Johnson, 73 Misc.3d 127 [A], 2021 NY Slip Op 50885[U], *2; People v Disano, 67 Misc.3d 131 [A], 2020 NY Slip Op 59439 [U], *1).
The defendant's challenge to the legal sufficiency of the evidence is largely unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 N.Y.3d 484, 492-493). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, 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), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
The defendant's specific contentions regarding the Supreme Court's Sandoval ruling (see People v Sandoval, 34 N.Y.2d 371) are unpreserved for appellate review (see CPL 470.05[2]; People v Jones, 173 A.D.3d 1062; People v Beaupre, 170 A.D.3d 1031). In any event, the court's Sandoval ruling was a provident exercise of discretion, as it constituted an appropriate compromise which balanced the probative value of the proffered evidence against the prejudice to the defendant (see People v Dudley, 203 A.D.3d 1066).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
DUFFY, J.P., BRATHWAITE NELSON, WOOTEN and ZAYAS, JJ., concur.