PEOPLE v. ALMEDA

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

The PEOPLE, etc., respondent, v. Phillip ALMEDA, appellant.

Decided: August 02, 2004

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ. Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Tziyonah M. Langsam of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered April 5, 2001, convicting him of attempted aggravated assault upon a police officer (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).   Three police officers testified that when they confronted the defendant and identified themselves, he responded by shooting a firearm repeatedly in their direction.   This evidence provided a sufficient factual basis for the jury verdict finding the defendant guilty of three counts of attempted aggravated assault upon a police officer (see People v. Clark, 191 A.D.2d 576, 577, 595 N.Y.S.2d 87;  People v. Smith, 162 A.D.2d 736, 557 N.Y.S.2d 424).   Inconsistencies regarding the location and source of shell casings that fell during the gun battle were placed before the trier of fact and resolved in the prosecution's favor (see People v. Clark, supra ).

The imposition of consecutive sentences was a proper exercise of the Supreme Court's discretion (see People v. Day, 73 N.Y.2d 208, 212, 538 N.Y.S.2d 785, 535 N.E.2d 1325;  People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29;  People v. Clark, supra ).   Furthermore, the sentences imposed were not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The remaining contentions raised in the defendant's supplemental pro se brief are without merit.

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