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

1300.1/12
KA 11-00715
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CURTIS L. MASON, DEFENDANT-APPELLANT.


MARY J. FAHEY, SYRACUSE, FOR DEFENDANT-APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.


     Appeal from a judgment of the Seneca County Court (Dennis F.
Bender, J.), rendered March 28, 2011. The judgment convicted
defendant, upon a jury verdict, of official misconduct. The judgment
was affirmed by order of this Court entered December 21, 2012 in a
memorandum decision (101 AD3d 1659), and defendant on January 4, 2013
was granted leave to appeal to the Court of Appeals from the order of
this Court (20 NY3d 1013), and the Court of Appeals on June 11, 2013
reversed the order and remitted the case to this Court for further
consideration (___ NY3d ___).

     Now, upon remittitur from the Court of Appeals,

     It is hereby ORDERED that, upon remittitur from the Court of
Appeals, the judgment so appealed from is unanimously affirmed and the
matter is remitted to Seneca County Court for proceedings pursuant to
CPL 460.50 (5).

     Memorandum: This case is before us upon remittal from the Court
of Appeals (People v Mason, 101 AD3d 1659, revd ___ NY3d ___ [June 11,
2013]). We previously affirmed the judgment convicting defendant,
following a second jury trial, of official misconduct (Penal Law §
195.00 [1]). Although defendant contended, inter alia, that the
verdict following the first trial was “against the weight of the
evidence,” we interpreted that contention as a challenge to the
verdict in the first trial on the ground of repugnancy or
inconsistency (Mason, 101 AD3d at 1660-1661). We concluded that
defendant’s contention was not preserved for our review and that, in
any event, the verdict was neither repugnant nor inconsistent (id. at
1661). The Court of Appeals determined that defendant’s contention
was a challenge to the weight of the evidence, and therefore reversed
our order and remitted the matter to this Court for consideration of
that contention (Mason, ___ NY3d at ___).

    Upon remittitur, and viewing the evidence in light of the
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                                                        KA 11-00715

elements of the crime of official misconduct as charged to the jury
(see People v Danielson, 9 NY3d 342, 349; People v Rayam, 94 NY2d 557,
563 n; People v Vazquez, 103 AD3d 460, 461), we conclude that the
verdict in the first trial was not against the weight of the evidence
(see People v Bleakley, 69 NY2d 490, 495). “[T]he fact that the jury
acquitted defendant of [other] charge[s] does not warrant a different
conclusion” (People v Rodriguez, 62 AD3d 460, 460, lv denied 13 NY3d
748; see Rayam, 94 NY2d at 561; People v Saldano, 104 AD3d 582, 582;
People v Mercado, 102 AD3d 813, 813, lv denied 20 NY3d 1102).




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
