People v. De La Rosa

233 A.D.2d 257, 650 N.Y.S.2d 641, 1996 N.Y. App. Div. LEXIS 12151

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1996
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (John Stackhouse, J.), rendered March 30, 1994, convicting defendant, after a jury trial, of murder in the second degree, criminal possession of a weapon in the second and third degrees, and criminal mischief in the third degree and sentencing him to concurrent terms of 25 years to life, 5 to 15 years and 21/s to 7 years, respectively, and a consecutive term of l1/3 to 4 years on the criminal mischief conviction, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence, which established that, evincing a depraved indifference to human life, defendant repeatedly threatened and expressed his desire to his accomplices that the victim be killed; he directed his accomplices to get a gun; and he injured and prevented his victim from escaping while one of his accomplices fired a fatal shot into the victim’s chest (Penal Law § 125.25 [2]). Defendant’s challenge to the court’s charge is unpreserved and, in any event, without merit.

The court properly discharged a sworn juror, over defense objection, where the juror was found to have engaged in flirtatious conduct with a co-defendant’s sister and then lied about it to the court. The juror was "grossly unqualified to serve” and had also "engaged in misconduct of a substantial nature.” (CPL 270.35 [1].) There was no basis to discharge any other jurors or to declare a mistrial.

Defendant’s sentence is legal and we decline to reduce it in the interest of justice. Concur—Murphy, P. J., Ross, Tom, Mazzarelli and Andrias, JJ.