People v. Sotomayor

127 A.D.2d 621, 511 N.Y.S.2d 417, 1987 N.Y. App. Div. LEXIS 43105

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Fuchs, J.), rendered April 17, 1985, convicting him of criminal possession of a weapon in the second degree, assault in the second degree, and reckless endangerment in the first degree, upon jury verdict, and imposing sentence.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the defendant’s conviction of criminal possession of a weapon in the second degree from 6 to 12 years’ imprisonment to 5 to 10 years’ imprisonment. As so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the People, the defendant’s guilt was proven beyond a reasonable doubt (see, People v Malizia, 62 NY2d 755, cert denied 469 US 932). Specifically, the jury could reasonably have inferred from the facts proven that the defendant intended to cause physical injury to the victim and to unlawfully use a weapon against another (cf., People v Castillo, 47 NY2d 270).

The defendant’s claim of error with respect to the court’s charge on the subject of flight is also without merit. There was more than sufficient evidence to warrant such a charge, and the defendant’s innocent explanation for his departure from the scene of the shooting merely presented a question of fact for the jury to resolve.

The defendant’s contentions regarding the prosecutor’s cross-examination and summation are either unpreserved or have no merit.

Under the unusual circumstances of this case, however, we will exercise our discretion to impose the sentence which the sentencing court, upon reconsideration, felt would have been more appropriate but felt it was powerless to impose. Niehoff, J. P., Rubin, Lawrence and Sullivan, JJ., concur.