People v. Cabrera

221 A.D.2d 461, 633 N.Y.S.2d 550, 1995 N.Y. App. Div. LEXIS 11842

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joy, J.), rendered May 7, 1992, convicting him of assault in the second degree and menacing, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People, v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s claim that his conviction of assault in the second degree was repugnant to his acquittal of criminal possession of a weapon in the fourth degree is unpreserved for appellate review because he failed to raise this argument prior to the discharge of the jury (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10; People v Alfaro, 66 NY2d 985, 987; People v Buford, 198 AD2d 55; People v Cruz, 175 AD2d 212). In any event, the defendant’s claim of repugnancy is without merit. Viewing the elements of the crimes as charged to the jury (see, People v Tucker, 55 NY2d 1, 7), the jury could have found the defendant guilty of assault in the second degree while also concluding that he was not guilty of criminal possession of a weapon in the fourth degree. O’Brien, J. P., Pizzuto, Santucci and Krausman, JJ., concur.