Opinion
09-14-2016
The PEOPLE, etc., respondent, v. Melvin SMITH III, appellant.
Andrew E. MacAskill, Westbury, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Cristin N. Connell of counsel), for respondent.
Andrew E. MacAskill, Westbury, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Cristin N. Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Grella, J.), rendered April 11, 2014, convicting him of reckless endangerment in the first 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 identity as the shooter beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). The minor discrepancies between the description of the defendant given at trial by the People's main witnesses and the descriptions given to police in affidavits after the shooting and before the grand jury did not render their testimony incredible (see People v. Green, 107 A.D.3d 915, 915, 967 N.Y.S.2d 753 ; People v. Rivera, 78 A.D.3d 969, 910 N.Y.S.2d 669 ).
The defendant's contention that the verdict was repugnant because the jury convicted him of reckless endangerment in the first degree but acquitted him of all the other counts, including criminal possession of a weapon in the second degree under Penal Law § 265.03(3), is unpreserved for appellate review because he failed to make this argument before the jury was discharged (see CPL 470.05 [2 ]; People v. DeLee, 24 N.Y.3d 603, 607, 2 N.Y.S.3d 382, 26 N.E.3d 210 ; People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271 ; People v. May, 138 A.D.3d 1024, 30 N.Y.S.3d 262 ; People v. Lobban, 59 A.D.3d 566, 872 N.Y.S.2d 557 ). In any event, the contention is without merit (see People v. DeLee, 24 N.Y.3d at 608, 2 N.Y.S.3d 382, 26 N.E.3d 210 ; People v. Muhammad, 17 N.Y.3d 532, 935 N.Y.S.2d 526, 959 N.E.2d 463 ; People v. Tucker, 55 N.Y.2d 1, 9, 447 N.Y.S.2d 132, 431 N.E.2d 617 ; People v. Groves, 8 A.D.3d 498, 779 N.Y.S.2d 127 ).
The defendant's remaining contention is without merit (see People v. Abraham, 22 N.Y.3d 140, 146, 978 N.Y.S.2d 723, 1 N.E.3d 797 ).
CHAMBERS, J.P., AUSTIN, MALTESE and DUFFY, JJ., concur.