People v. Walker

154 A.D.2d 412, 546 N.Y.S.2d 978, 1989 N.Y. App. Div. LEXIS 12296

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered October 30, 1986, convicting him of murder in the second degree, criminal possession of a weapon in the second degree (three counts), and assault in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction of assault in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

We agree with the defendant’s contention that the evidence, viewed in the light most favorable to the prosecution (People v Contes, 60 NY2d 620), was legally insufficient to sustain his conviction for assault in the first degree (see, People v Pollard, 150 AD2d 397). Accordingly, that conviction must be reversed and that count of the indictment dismissed.

The defendant further contends that the court erred in denying his motion for a mistrial on the ground of juror misconduct. We considered and rejected that issue upon the appeal of his codefendant (see, People v Pollard, supra). The defendant has not raised any arguments requiring a different result.

We have examined the remaining contentions advanced by the defendant and find them to be without merit. Eiber, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.