        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1033
KA 06-03778
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUIS RIVERA, DEFENDANT-APPELLANT.


MULDOON & GETZ, ROCHESTER (GARY MULDOON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Elma A.
Bellini, J.), rendered October 10, 2006. The judgment convicted
defendant, upon jury verdicts, of criminal possession of a weapon in
the second degree and murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
following separate jury trials, of criminal possession of a weapon in
the second degree (Penal Law § 265.03 [former (2)]) and murder in the
second degree (§ 125.25 [1]). At the first trial, the jury found
defendant guilty of the weapons offense but could not reach a verdict
on the murder count. County Court accepted a partial verdict and,
following a second trial, defendant was found guilty of murder.
Defendant contends that, under the principles of double jeopardy, he
should not have been retried on the murder count because the evidence
at the first trial was legally insufficient to establish his
commission of that offense, and a guilty verdict would have been
against the weight of the evidence. Defendant further contends that
the verdict at the second trial is against the weight of the evidence.
We reject those contentions.

     A conviction is supported by legally sufficient evidence when,
viewing the facts in the light most favorable to the People, “ ‘there
is a valid line of reasoning and permissible inferences from which a
rational jury could have found the elements of the crime proved beyond
a reasonable doubt’ ” (People v Danielson, 9 NY3d 342, 349; see
generally People v Bleakley, 69 NY2d 490, 495). Here, a prosecution
witness testified at the first trial that she saw defendant shoot the
victim in the back of the head from close range. The witness was
unequivocal in her identification of defendant, whom she had known for
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                                                         KA 06-03778

three years prior to the shooting. Accepting the testimony of that
eyewitness as true, as we must in the context of defendant’s challenge
to the legal sufficiency of the evidence (see People v Contes, 60 NY2d
620, 621), we conclude that there is a valid line of reasoning and
permissible inferences that could lead a rational jury to conclude
that defendant intentionally killed the victim and thereby committed
murder in the second degree.

     With respect to the weight of the evidence, defendant contends
that, although the jury did not reach a verdict on the murder count at
the first trial, the People failed to prove his guilt beyond a
reasonable doubt and should not have been given a second opportunity
to seek a conviction. Because the jury did not render a verdict on
the murder count, however, there is no verdict from the first trial to
which to apply a weight-of-the-evidence test (cf. People v Mason, 101
AD3d 1659, 1660, revd on other grounds 21 NY3d 962; People v Scerbo,
74 AD3d 1730, 1732-1733, lv denied 15 NY3d 757). In any event,
viewing the evidence in light of the elements of the crime as charged
to the jury (see Danielson, 9 NY3d at 349), we conclude that a guilty
verdict on the murder count, if one had been rendered at the first
trial, would not have been against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495). We further conclude that the
verdict with respect to the weapons offense is not contrary to the
weight of the evidence.

     As noted, a prosecution witness testified that she saw defendant
shoot the victim. Although the witness had been drinking heavily on
the night in question and had smoked marihuana, it cannot be said that
her testimony was “so inconsistent or unbelievable as to render it
incredible as a matter of law” (People v Black, 38 AD3d 1283, 1285, lv
denied 8 NY3d 982; see People v Smith, 73 AD3d 1469, 1470, lv denied
15 NY3d 778). We note that much of the witness’s testimony was
corroborated by other witnesses, several of whom placed defendant at
the scene of the crime with what appeared to be a gun in his hand.
Moreover, the evidence established that the victim was shot in the
back of the head with a .380 caliber bullet from a range of five to
six feet and, according to several witnesses, defendant was standing
behind the victim when he was shot. Although another person fired two
shots from a .45 caliber firearm shortly after the victim was shot,
the shell casings for those bullets were found approximately 50 feet
from the victim’s body, and it is undisputed that the victim was not
struck by a .45 caliber bullet.

     We further conclude that the verdict at the retrial is not
against the weight of the evidence. At the retrial, two witnesses who
knew defendant testified that they saw him shoot the victim, and their
testimony was amply corroborated by other evidence. As at the first
trial, defendant did not testify and called no witnesses. Under the
circumstances, even assuming, arguendo, that a different verdict would
not have been unreasonable, we conclude that it cannot be said that
the jury failed to give the evidence the weight it should be accorded
(see generally Bleakley, 69 NY2d at 495; People v Gay, 105 AD3d 1427,
1427-1428).
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                                                        KA 06-03778

     Finally, defendant’s contention that the court failed to ask him
whether he wished to make a statement at sentencing, as required by
CPL 380.50 (1), is unpreserved for our review (see People v Sharp, 56
AD3d 1230, 1231, lv denied 11 NY3d 900), and we decline to exercise
our power to review it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
