People v Fisher (Carl)

[*1] People v Fisher (Carl) 2009 NY Slip Op 52644(U) [26 Misc 3d 128(A)] Decided on December 29, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570298/09.

The People of the State of New York, Respondent,

against

Carl Fisher, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James D. Gibbons, J.), rendered March 4, 2008, after a nonjury trial, convicting him of public lewdness, and imposing sentence.

Per Curiam.

Judgment of conviction (James D. Gibbons, J.), rendered March 4, 2008, affirmed.

We find that the trial evidence, viewed in the light most favorable to the People, was legally sufficient to establish defendant's guilt of public lewdness (see People v Danielson, 9 NY3d 342, 349 [2007]). Moreover, after applying the appropriate standard of review (see id. at 348-349), we conclude that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The credited trial testimony of the eyewitness regarding the hand movements made by defendant, whom the witness said was naked, was sufficient to establish beyond a reasonable doubt that defendant exposed himself in a lewd manner (see Penal Law § 245.00). We note, too, the credited testimony of the witness that he observed a liquid or lotion in defendant's hands, testimony that was corroborated by the police officers who responded to defendant's abode to investigate his conduct.

The evidence adduced at the suppression hearing amply supports the court's finding that an independent source existed for the eyewitness' in-court identification of defendant (see People v Williams, 222 AD2d 149, 153-154 [1996], lv denied 88 NY2d 1072 [1996]).

Defendant's claim that the verdict is repugnant is unpreserved for our review since he neither objected to the verdict nor moved pursuant to CPL 330.30 to set it aside (see People v Alfaro, 66 NY2d 985 [1985]; People v Furman, 224 AD2d 188 [1996], lv denied 88 NY2d 878 [1996]), and we decline to review that claim in the interest of justice.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concurI concur
Decision Date: December 29, 2009