People v. Simmons

290 A.D.2d 274, 735 N.Y.S.2d 744, 2002 N.Y. App. Div. LEXIS 169

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2002
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered December 10, 1999, convicting defendant, after a jury trial, of assault in the first and second degrees and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 18 years, 5 years and 10 years, respectively, and judgment, same court (Brenda Soloff, J.), rendered December 17, 1999, convicting defendant upon his plea of guilty of criminal sale of a controlled substance in the third degree, and sentencing him to a concurrent term of 1 to 3 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury’s determinations concerning credibility. The requisite intent for each crime, as well as defendant’s lack of justification, was established by credible evidence from which the jury could reasonably conclude that defendant carefully aimed and repeatedly fired at the fleeing victims (see, People v McNamee, 266 AD2d 162, lv denied 94 NY2d 905). The evidence also established that one victim, whose health was still impaired at the time of trial, suffered serious physical injury, and the other victim, who testified as to his substantial pain, suffered physical injury.

The record fails to support defendant’s contention that the court improperly based its sentence on crimes of which he was acquitted. We perceive no basis for reduction of sentence. Concur — Nardelli, J.P., Williams, Saxe, Wallach and Friedman, JJ.