PEOPLE v. FLORES (2007)

Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.), rendered April 29, 2005, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and tampering with physical evidence, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of murder in the second degree and vacating the sentence imposed thereon;  as so modified, the judgment is affirmed.

The defendant's conviction of depraved indifference murder (see Penal Law § 125.25[2] ) must be vacated, as that count of the indictment had been dismissed by another judge prior to trial and was later mistakenly submitted to the jury by the trial judge (see People v. Shampine, 31 A.D.3d 1163, 1164, 818 N.Y.S.2d 377;  People v. Romero, 309 A.D.2d 953, 954, 766 N.Y.S.2d 369;  People v. Smiley, 303 A.D.2d 425, 426, 755 N.Y.S.2d 870;  People v. Harris, 229 A.D.2d 595, 595, 645 N.Y.S.2d 858).

The defendant's contention that the evidence against him was legally insufficient to establish his guilt of criminal possession of a weapon in the second degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Daniels, 35 A.D.3d 495, 496, 826 N.Y.S.2d 369).   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), the evidence as to this charge was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Daniels, supra;  People v. Edwards, 29 A.D.3d 818, 819, 816 N.Y.S.2d 128).

The sentences imposed on the remaining counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and tampering with physical evidence were not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

In light of the foregoing, the defendant's remaining contentions regarding the conviction for depraved indifference murder have been rendered academic.