PEOPLE v. MCGREGOR (2023)

Judgment, Supreme Court, New York County (Ann E. Scherzer, J.), rendered April 26, 2022, as amended April 27, 2022, convicting defendant, after a jury trial, of conspiracy in the fourth degree, and sentencing him to a term of one year, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  Viewed as a whole, the evidence supported the conclusion that defendant was a participant in the firearm possession conspiracy.  Defendant's intent and his agreement with his coconspirators “could be readily inferred from the totality of the circumstantial evidence, which excluded reasonable innocent explanations” (People v. Rivera, 215 A.D.3d 462, 462, 185 N.Y.S.3d 677 [1st Dept. 2023], lv denied 40 N.Y.3d 999, 197 N.Y.S.3d 97, 219 N.E.3d 858 [2023]).  The fact that defendant was acquitted of the other charges does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000]).

The prosecutor's two isolated remarks on summation that mischaracterized the evidence were not so egregious as to have deprived defendant of a fair trial (see People v. Villa, 174 A.D.3d 438, 439, 103 N.Y.S.3d 425 [1st Dept. 2019], lv denied 34 N.Y.3d 1019, 114 N.Y.S.3d 753, 138 N.E.3d 482 [2019];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).  Further, the court's instructions during the trial and jury charge were sufficient to prevent the misstatements from causing any prejudice (see People v. Simmons, 117 A.D.3d 555, 985 N.Y.S.2d 246 [1st Dept. 2014], lv denied 23 N.Y.3d 1067, 994 N.Y.S.2d 326, 18 N.E.3d 1147 [2014]).  In any event, the comments were harmless in light of the overwhelming evidence of guilt (see People v. Scott, 172 A.D.3d 543, 543, 100 N.Y.S.3d 260 [1st Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 629, 134 N.E.3d 628 [2019]).

We perceive no basis for granting youthful offender treatment as a matter of discretion in the interest of justice.