Opinion
2017–05485 Ind. No. 1243/14
11-07-2018
The PEOPLE, etc., Respondent, v. Phillip C. TORO, Also Known as Chris, Appellant.
Law Offices of Lombardino and Nektalov, Richmond Hill, N.Y. (Judah Maltz of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle M. O'Boyle of counsel), for respondent.
Law Offices of Lombardino and Nektalov, Richmond Hill, N.Y. (Judah Maltz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle M. O'Boyle of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, ROBERT J. MILLER, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Deborah Stevens Modica, J.), rendered April 10, 2017, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and gang assault in the second degree, upon his plea of guilty, 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 of criminal possession of a weapon in the third degree 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, 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 as to criminal possession of a weapon in the third degree 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 ).
We agree with the Supreme Court's determination to deny the defendant's motion for a mistrial after the codefendant pleaded guilty following jury selection. The plea took place outside the presence of the jury, and the court gave curative instructions to the jury which ameliorated any prejudice to the defendant (see People v. Mirenda, 23 N.Y.2d 439, 450–451, 297 N.Y.S.2d 532, 245 N.E.2d 194 ; People v Association of Trade Waste Removers of Greater N.Y., 267 A.D.2d 137, 139, 701 N.Y.S.2d 12 ; People v. Adorno, 216 A.D.2d 686, 687, 628 N.Y.S.2d 426 ; People v. Thomas, 212 A.D.2d 474, 475, 623 N.Y.S.2d 203 ; People v. Rosario, 155 A.D.2d 563, 547 N.Y.S.2d 418 ).
The defendant's remaining contention need not be reached in light of our determination.
SCHEINKMAN, P.J., RIVERA, MILLER and LASALLE, JJ., concur.