People v Algarin

People v Algarin 2015 NY Slip Op 05755 Decided on July 2, 2015 Appellate Division, First 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 July 2, 2015
Gonzalez, P.J., Sweeny, Renwick, Saxe, Feinman, JJ.
15600 4335/12

[*1] The People of the State of New York, Respondent,

v

Michael Algarin, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell LLP, New York (David J. Robles of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered May 28, 2013, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, assault in the third degree and criminal mischief in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of 2½ to 5 years, unanimously affirmed.

The court erred in its determination that defendant opened the door to a modification of its Sandoval ruling. Nonetheless the error was harmless in light of the remaining overwhelming evidence of guilt.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility, and its mixed verdict does not warrant a different conclusion (see People v Rayam, 94 NY2d 557 [2000]).

Defendant's challenge to the court's jury charge is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 2, 2015

CLERK