| People v Cormack |
| 2019 NY Slip Op 02210 |
| Decided on March 22, 2019 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 22, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
141 KA 16-01937
v
ISAIAH S. CORMACK, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.
ISAIAH S. CORMACK, DEFENDANT-APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (COLIN X. FITZGERALD OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered October 13, 2016. The judgment convicted defendant, upon a nonjury verdict, of assault in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of assault in the first degree (Penal Law
§ 120.10 [1]). The charge arose after the victim, who had been in a relationship with defendant's wife, was shot and injured during a house party.
We reject defendant's contention in his main and pro se supplemental briefs that the evidence is legally insufficient to support the conviction. " It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial, viewed in the light most favorable to the People' " (People v Clark, 142 AD3d 1339, 1340 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]). Here, the fact that none of the witnesses testified as to seeing defendant fire the shot that injured the victim " does not render the evidence legally insufficient, inasmuch as there was ample circumstantial evidence establishing defendant's identity as the shooter' " (id. at 1341). Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention in his main and pro se supplemental briefs that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant also contends in his main and pro se supplemental briefs that the verdict is repugnant because County Court acquitted him of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) but convicted him of assault in the first degree
(§ 120.10 [1]). We reject that contention inasmuch as his acquittal of the weapon charge did not necessarily negate an essential element of the assault charge (see People v DeLee, 24 NY3d 603, 608 [2014], rearg denied 31 NY3d 1127 [2018]; People v Muhammad, 17 NY3d 532, 539-540 [2011]; People v James, 249 AD2d 919, 919 [4th Dept 1998], lv denied 92 NY2d 899 [1998]).
Defendant's additional contention in his pro se supplemental brief that the court erred in failing to hold an independent source hearing with respect to a witness's pretrial identification of him from a photo array is moot inasmuch as that witness did not identify defendant at trial (see People v Goodrell, 130 AD3d 1502, 1503 [4th Dept 2015]). Contrary to defendant's contention in his pro se supplemental brief, we conclude that defendant received meaningful representation [*2](see People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, we reject defendant's contention in his main brief that the sentence is unduly harsh and severe.
Entered: March 22, 2019
Mark W. Bennett
Clerk of the Court