People v. Muller

226 A.D.2d 118, 639 N.Y.S.2d 924, 1996 N.Y. App. Div. LEXIS 3320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1996
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered August 5,1992, convicting defendant, after a jury trial, of murder in the second degree, robbery in the first and second degrees, grand larceny in the third degree, and hindering prosecution in the first degree, and sentencing him to concurrent terms of 25 years to life, 81/3 to 25 years, 5 to 15 years, 21/3 to 7 years and 21/s to 7 years, respectively, unanimously affirmed.

We find that the verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant’s actions and statements immediately before and after the crime clearly established his accessorial liability, when taken together with the remaining evidence. Defendant failed to preserve his claim that the court should have instructed the jury that the People’s witness was an accomplice as a matter of law (see, People v Cowans, 213 AD2d 344, lv denied 85 NY2d 971), and we decline to review it in the interest of justice. Were we to review it, we would find that the evidence did not require such a charge.

We find no basis to disturb the court’s discretionary ruling that a juror was not grossly unqualified or to reject the court’s acceptance of that juror’s unequivocal assurances that she could deliberate fairly (see, People v Rodriguez, 71 NY2d 214, 219-220). The remaining challenges to the court’s instructions are unpreserved for review and also without merit. We perceive no abuse of discretion in sentencing. Concur—Rosenberger, J. P., Wallach, Kupferman, Nardelli and Williams, JJ.