PEOPLE v. SOBERANIS

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

The PEOPLE of the State of New York, Respondent, v. Marvin SOBERANIS, Defendant-Appellant.

Decided: June 26, 2008

LIPPMAN, P.J., TOM, ANDRIAS, SAXE, JJ. Steven Banks, The Legal Aid Society, New York (Michelle Fox of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jung Park of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene Goldberg, J.), rendered November 17, 2006, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 12 years and 7 years, respectively, unanimously affirmed.

 Defendant's legal sufficiency argument is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we also find that the verdict was based on legally sufficient evidence.   Furthermore, the verdict 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] ).   Although it is undisputed that defendant was justified in using a firearm against an armed assailant, the evidence supports the conclusion that the weapon defendant used was already in his possession prior to his justified use of it, and defendant's argument to the contrary is speculative.   We also reject defendant's ineffective assistance of counsel claim relating to these issues (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

 Since the court gave the jury the instruction defendant expressly requested, and since defendant did not object to the instruction as delivered, his challenge to the court's discussion of circumstantial evidence in its charge is unpreserved (see People v. Lewis, 5 N.Y.3d 546, 551, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005];  People v. Whalen, 59 N.Y.2d 273, 280, 464 N.Y.S.2d 454, 451 N.E.2d 212 [1983] ) and we decline to review it in the interest of justice.   As an alternative holding, we find that there was no need to instruct the jury on the standard of proof in a wholly circumstantial case, since the People did not rely entirely on circumstantial evidence (see People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014 [1993] ).

We perceive no basis for reducing the sentence.