People v. Ortiz

254 A.D.2d 27, 679 N.Y.S.2d 366, 1998 N.Y. App. Div. LEXIS 9922

Opinion

Judgment, Supreme Court, New York County (Ira Beal, J.), rendered December 22, 1994, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of 9 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury’s credibility determinations.

Defendant’s contention that testimony concerning his firing of the pistol should have been precluded from his retrial under the doctrine of collateral estoppel is not preserved for appellate review, and we decline to review it in the interest of justice. Although defendant made some reference to a prior acquittal, he did not alert the court to his present collateral estoppel claim, as evidenced by the court’s treatment of the issue simply as an uncharged crime issue, and defendant never called the court’s attention to the absence of a collateral estoppel ruling. Were we to review this claim, we would find that the fact that the first jury acquitted defendant of possessing a loaded gun with the intent to use it unlawfully against another was not necessarily based upon a rejection of the police officers’ testimony that defendant had fired a weapon in the direction of other people (see, People v Goodman, 69 NY2d 32, 40).

We perceive no abuse of sentencing discretion. Concur— Milonas, J. P., Rosenberger, Ellerin and Andrias, JJ.