Opinion
102 KA 18-01268
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Corey R. SMITH, Defendant-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (NOLAN D. PITKIN OF COUNSEL), FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (NOLAN D. PITKIN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree ( Penal Law § 265.02 [1] ), menacing in the first degree (§ 120.13), harassment in the second degree (§ 240.26 [1]), and menacing in the second degree (§ 120.14 [1]), defendant contends that the evidence is legally insufficient to support the conviction with respect to the weapon possession and menacing counts. Contrary to defendant's contention, the evidence, viewed in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction with respect to those counts (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In addition, viewing the evidence with respect to all four counts of which defendant was convicted in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's further contention, County Court did not abuse its discretion by continuing the trial in defendant's absence when defendant did not appear in court on the second and third days of trial. The record establishes that the court had given defendant the requisite warnings (see People v. Parker , 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982] ), and he therefore waived his right to be present at trial (see People v. Ligammari , 140 A.D.3d 1631, 1632, 32 N.Y.S.3d 774 [4th Dept. 2016], lv denied 28 N.Y.3d 971, 43 N.Y.S.3d 259, 66 N.E.3d 5 [2016] ; People v. Bynum , 125 A.D.3d 1278, 1278, 1 N.Y.S.3d 724 [4th Dept. 2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ; People v. Anderson , 52 A.D.3d 1320, 1321, 859 N.Y.S.2d 852 [4th Dept. 2008], lv denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656 [2008] ).