PEOPLE v. CORMACK (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him, after a nonjury trial, of assault in the first degree (Penal Law § 120.10[1] ).  The charge arose after the victim, who had been in a relationship with defendant's wife, was shot and injured during a house party.

We reject defendant's contention in his main and pro se supplemental briefs that the evidence is legally insufficient to support the conviction.  “ ‘It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial, viewed in the light most favorable to the People’ ” (People v. Clark, 142 A.D.3d 1339, 1340, 39 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ).  Here, the fact that none of the witnesses testified as to seeing defendant fire the shot that injured the victim “ ‘does not render the evidence legally insufficient, inasmuch as there was ample circumstantial evidence establishing defendant's identity as the shooter’ ” (id. at 1341, 39 N.Y.S.3d 325).  Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's further contention in his main and pro se supplemental briefs that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Defendant also contends in his main and pro se supplemental briefs that the verdict is repugnant because County Court acquitted him of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) but convicted him of assault in the first degree (§ 120.10[1] ). We reject that contention inasmuch as his acquittal of the weapon charge did not necessarily negate an essential element of the assault charge (see People v. DeLee, 24 N.Y.3d 603, 608, 2 N.Y.S.3d 382, 26 N.E.3d 210 [2014], rearg. denied 31 N.Y.3d 1127, 81 N.Y.S.3d 351, 106 N.E.3d 734 [2018];  People v. Muhammad, 17 N.Y.3d 532, 539–540, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011];  People v. James, 249 A.D.2d 919, 919, 672 N.Y.S.2d 174 [4th Dept. 1998], lv denied 92 N.Y.2d 899, 680 N.Y.S.2d 63, 702 N.E.2d 848 [1998] ).

Defendant's additional contention in his pro se supplemental brief that the court erred in failing to hold an independent source hearing with respect to a witness's pretrial identification of him from a photo array is moot inasmuch as that witness did not identify defendant at trial (see People v. Goodrell, 130 A.D.3d 1502, 1503, 12 N.Y.S.3d 482 [4th Dept. 2015] ).  Contrary to defendant's contention in his pro se supplemental brief, we conclude that defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).

Finally, we reject defendant's contention in his main brief that the sentence is unduly harsh and severe.