PEOPLE v. NIEVES (2001)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose NIEVES, Defendant-Appellant.

Decided: May 22, 2001

WILLIAMS, J.P., ELLERIN, LERNER, SAXE and BUCKLEY, JJ.

Patricia Curran, for Respondent. Carol A. Zeldin, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered November 19, 1998, convicting defendant, after a jury trial, of reckless endangerment in the first degree, and sentencing him to a term of 2 1/313 to 7 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The accomplice testimony was properly corroborated (see, CPL 60.22; People v. Breland, 83 N.Y.2d 286, 292-295, 609 N.Y.S.2d 571, 631 N.E.2d 577).

Pursuant to a preconceived plan by gang members to harass and intimidate the police, defendant threw a 34-pound garbage can from the roof of a 13-story building, barely missing a police officer. Under these facts, there was no reasonable view of the evidence to warrant submission to the jury of the lesser included offense of second-degree reckless endangerment (see, People v. Parks, 281 A.D.2d 217, 722 N.Y.S.2d 15).

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