PEOPLE v. HALL (2008)

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered December 15, 2004, convicting him of criminal possession of a weapon in the third degree and attempted petit larceny (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim that the jury verdict convicting him of criminal possession of a weapon in third degree and acquitting him of attempted robbery in the first degree, attempted robbery in the second degree, and attempted assault in the second degree was repugnant or inconsistent is not preserved for appellate review, as no objection was raised before the jury was discharged (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  People v. Middleton, 52 A.D.3d 533, 860 N.Y.S.2d 553;  People v. Graham, 307 A.D.2d 935, 762 N.Y.S.2d 889).   In any event, the verdict was not repugnant or inconsistent (see People v. Carrion, 282 A.D.2d 543, 722 N.Y.S.2d 888;  People v. Bebee, 210 A.D.2d 243, 244, 620 N.Y.S.2d 269).

 The defendant's challenge to the legal sufficiency of the evidence also is unpreserved for appellate review (see CPL 470.05[2];  People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  People v. Jones, 309 A.D.2d 819, 765 N.Y.S.2d 661).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Burbridge, 51 A.D.3d 813, 814, 859 N.Y.S.2d 196).   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, 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 (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon our independent review pursuant to CPL 470.15(5), 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, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant failed to preserve for appellate review the issue of whether the court properly charged the jury on the People's burden of proving his guilt beyond a reasonable doubt (see CPL 470.05[2];  People v. Johnson, 35 A.D.3d 885, 828 N.Y.S.2d 431;  People v. McAloney, 2 A.D.3d 538, 539, 767 N.Y.S.2d 914).   In any event, the jury charge as a whole correctly explained the concept of reasonable doubt to the jury and “adequately apprised the jury of the proper standard of proof to apply to the evidence before it” (People v. Blackshear, 112 A.D.2d 1044, 1045-1046, 493 N.Y.S.2d 32) and, therefore, did not deprive the defendant of a fair trial (see People v. Sanchez, 29 A.D.3d 608, 813 N.Y.S.2d 307;  People v. Grant, 294 A.D.2d 597, 742 N.Y.S.2d 885).

The defendant received the effective assistance of counsel (see People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845;  People v. Owens, 43 A.D.3d 1185, 842 N.Y.S.2d 94;  People v. Sherrod, 306 A.D.2d 503, 761 N.Y.S.2d 838).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.