Opinion
October 13, 1994
Appeal from the Supreme Court, New York County (Alfred H. Kleiman, J.).
The guilty verdict was neither based on legally insufficient evidence nor was it against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490). Even if it is assumed that the jury's acquittals of defendant on the manslaughter and other counts were based solely on the defense of justification, those acquittals would not undermine the weight or sufficiency of the evidence of unlawful intent required for conviction of criminal possession of a weapon in the fourth degree (People v. Tomas, 186 A.D.2d 55, lv denied 81 N.Y.2d 766; see also, People v Rodriguez, 179 A.D.2d 554).
The court's decision to replace a juror, over defense objection, was based on ample proof, including the juror's own admissions and self-contradictory statements, taken together with other evidence, showing that the juror had engaged in substantial misconduct (CPL 270.35) by attempting to discuss the credibility of a principal witness with a fellow juror during trial (compare, People v. Fox, 172 A.D.2d 218, 219-220, lv denied 78 N.Y.2d 966, with People v. Horney, 112 A.D.2d 841, 842-843).
We perceive no abuse of sentencing discretion.
Concur — Wallach, J.P., Kupferman, Ross, Nardelli and Williams, JJ.