PEOPLE v. GOODMAN (2020)

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered November 16, 2015, convicting defendant, after a jury trial, of conspiracy in the first degree, two counts of conspiracy in the third degree and two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 40 years to life, unanimously affirmed.

The verdict was based on 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]). Moreover, we find that the evidence against defendant was overwhelming. There was ample evidence of defendant's intent to commit murder and his agreement with others to do so. There is no basis for disturbing the jury's credibility determinations. The fact that the jury acquitted defendant of certain 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 jury's verdict acquitting defendant of attempted murder but convicting him of conspiracy to commit murder was not legally repugnant, and the court properly denied defendant's motion to set aside the verdict. The respective crimes have different elements (see generally People v. Muhammad, 17 N.Y.3d 532, 539–540, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011]), and a person may conspire with others to commit an intended crime without reaching the point of attempting to commit that crime.

The court providently exercised its discretion in admitting an uncharged threat made by defendant to a rival gang member. This was highly probative of the charged crimes. A song posted on social media whose lyrics contained coconspirator declarations was also relevant to the conspiracy. Defendant failed to preserve his present challenges regarding: (i) a coconspirator's declaration that allegedly reflected on defendant's criminal propensity, (ii) the prosecutor's summation in general and specifically to a remark made by the court while overruling an objection during the prosecutor's summation, or (iii) the alleged lack of authentication of phone calls made by defendant, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. Although the court's remark during the summation was ill-advised, we find this error to be harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

Defendant's remaining arguments which were also raised by two of his jointly tried codefendants (People v. Pinkston, 169 A.D.3d 520, 94 N.Y.S.3d 268 [1st Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 684, 130 N.E.3d 1294 [2019]), are also rejected for the same reasons.

We have considered defendant's remaining contentions and find them unavailing.