People v Cabrera

People v Cabrera 2010 NY Slip Op 03788 [73 AD3d 437] May 4, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2010

The People of the State of New York, Respondent,
v
Gabriel Cabrera, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered October 12, 2007, convicting defendant, after a jury trial, of murder in the second degree, criminal possession of a weapon in the second degree, and five counts of tampering with physical evidence, and sentencing him, as a second felony offender, to an aggregate term of 27 years to life, unanimously affirmed.

We need not determine whether the court properly charged the jury on accessorial liability (Penal Law § 20.00). Even assuming the court erred, where there are two grounds on which the jury could have reached its verdict, and one but not the other of those grounds lacks support in the evidence, it is presumed that the jury reached its determination upon the factually sufficient ground (see People v Giordano, 87 NY2d 441, 451 [1995]; People v Hinckson, 266 AD2d 404 [1999], lv denied 95 NY2d 798 [2000]).

Defendant's claim that the accomplice liability instruction improperly amended the indictment, and all of his constitutional claims, are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Concur—Andrias, J.P., Friedman, Catterson, McGuire and RomÁn, JJ.