Opinion
647 KA 18–00499
08-22-2019
The PEOPLE of the State of New York, Respondent, v. Jorge SUAREZ, Also Known as Bebe/Suare, Defendant–Appellant.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree ( Penal Law § 125.25 [1 ] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). Defendant's conviction arises from a fatal shooting at a bar. We reject defendant's contentions that the evidence is legally insufficient to support the conviction and that the verdict is against the weight of the evidence. The People presented evidence establishing every element of the crimes charged and defendant's commission thereof (see generally People v. Moore, 78 A.D.3d 1658, 1659, 912 N.Y.S.2d 825 [4th Dept. 2010] ). The fact that none of the witnesses testified as to seeing defendant fire the shot that killed the victim " ‘does not render the evidence legally insufficient, inasmuch as there was ample circumstantial evidence establishing defendant's identity as the shooter’ " ( People v. Clark, 142 A.D.3d 1339, 1341, 39 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ). Additionally, viewing the evidence 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 People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Agee , 129 A.D.3d 1559, 1560, 13 N.Y.S.3d 713 [4th Dept. 2015] ).
Finally, we conclude that the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ).