PEOPLE v. ARCHER

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

The PEOPLE, etc., respondent, v. Jermaine ARCHER, appellant.

Decided: October 25, 2004

ANITA R. FLORIO, J.P., NANCY E. SMITH, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ. Harvey A. Herbert, Brooklyn, N.Y., for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered October 12, 2000, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, 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] ).

The defendant contends that the trial court violated the constitutional and statutory prohibitions against double jeopardy when it vacated its order setting aside the verdict and directing a new trial, and reinstated the guilty verdict, after determining that the prior order was the product of a fraud perpetrated on the court.   Since the order setting aside the verdict and directing a new trial based on newly-discovered evidence was not the equivalent of an adjudication of factual innocence, the reinstatement of the verdict did not violate the constitutional and statutory prohibitions against double jeopardy (see generally CPL 40.30[3], 450.20[3];  People v. Key, 45 N.Y.2d 111, 117-120, 408 N.Y.S.2d 16, 379 N.E.2d 1147;  People v. Dorta, 56 A.D.2d 607, 391 N.Y.S.2d 623).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.

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