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

The PEOPLE of the State of New York, Respondent, v. Luis RAMOS, Defendant-Appellant.

Decided: February 18, 1999

SULLIVAN, J.P., ELLERIN, LERNER and RUBIN, JJ. Nancy D. Killian, for respondent. Steven D. Kommor, for defendant-appellant.

Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered December 15, 1995, convicting defendant, after a jury trial, of one count of murder in the second degree (intentional murder), six counts of murder in the second degree (felony murder), one count of robbery in the first degree, and one count of conspiracy in the second degree, and sentencing him to a term of 25 years to life to run consecutively to six concurrent terms of 25 years to life, a term of 121/212 to 25 years, and a term of 81/313 to 25 years, respectively, unanimously affirmed.

 Defendant failed to preserve his claim that the portion of the jury's verdict convicting him of intentional murder as to one victim and acquitting him of that crime as to the other five victims was repugnant and we decline to review it in the interest of justice.   Were we to review this claim, we would find no repugnancy in light of the court's charge (People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617).   We reject defendant's related claim that this portion of the verdict was against the weight of the evidence.   As this Court has repeatedly held, “[d]efendant's acquittal of certain counts does not undermine the sufficiency and weight of the evidence supporting the counts on which he was convicted” (People v. Smith, 245 A.D.2d 23, 665 N.Y.S.2d 866, lv. denied 91 N.Y.2d 930, 670 N.Y.S.2d 412, 693 N.E.2d 759), and defendant's argument to the contrary “calls for an impermissible invasion of the jury's deliberative processes.”   (People v. Rivera, 201 A.D.2d 377, 607 N.Y.S.2d 930, lv. denied 83 N.Y.2d 875, 613 N.Y.S.2d 136, 635 N.E.2d 305).   In any event, the jury was entitled to conclude, based on the evidence before it, that in addition to being guilty of felony murder as to all victims, defendant was also guilty of intentional murder and conspiracy with respect to one victim.


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