PEOPLE v. SANCHEZ

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

The PEOPLE of the State of New York, Respondent, v. Steven SANCHEZ, Defendant-Appellant.

Decided: May 24, 2007

SAXE, J.P., NARDELLI, BUCKLEY, SWEENY, MALONE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Courtni Y. Burleson of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered May 11, 2004, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 18 years to life, unanimously affirmed.

Defendant's sufficiency claim regarding his conviction for depraved indifference murder was not preserved for appellate review.   Although, in response to defendant's generalized dismissal motion (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), the court briefly summarized some of the evidence, it never “expressly decided” the particular issue raised on appeal (CPL 470.05[2];  see People v. Turriago, 90 N.Y.2d 77, 83-84, 659 N.Y.S.2d 183, 681 N.E.2d 350 [1997];  compare People v. Prado, 4 N.Y.3d 725, 790 N.Y.S.2d 418, 823 N.E.2d 824 [2004] [court's factual findings in nonjury trial expressly decided issue] ), and we decline to review it in the interest of justice.   Were we to review this claim, we would find the verdict was based on legally sufficient evidence, based on the court's charge as given without exception (see People v. Sala, 95 N.Y.2d 254, 260, 716 N.Y.S.2d 361, 739 N.E.2d 727 [2000];  People v. Dekle, 56 N.Y.2d 835, 452 N.Y.S.2d 568, 438 N.E.2d 101 [1982];  People v. Jean-Baptiste, 38 A.D.3d 418, 833 N.Y.S.2d 31 [2007] ).   We also find that the verdict was not against the weight of the evidence in light of the elements of the crime as charged to the jury without objection (see People v. Cooper, 88 N.Y.2d 1056, 1058-1059, 651 N.Y.S.2d 7, 673 N.E.2d 1234 [1996];  People v. Noble, 86 N.Y.2d 814, 815, 633 N.Y.S.2d 469, 657 N.E.2d 490 [1995] ).

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).

We perceive no basis for reducing the sentence.