People v. Gary

• Decision Date: 12 March 2014
• Citation: 981 N.Y.S.2d 602,115 A.D.3d 760,2014 N.Y. Slip Op. 01626
• Parties: The PEOPLE, etc., respondent, v. Alfred GARY, appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 760

981 N.Y.S.2d 602

2014 N.Y. Slip Op. 01626

The PEOPLE, etc., respondent,

v.Alfred GARY, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 12, 2014.

Thomas F. Liotti (Fahringer & Dubno, New York, N.Y. [Herald Price Fahringer, Erica T. Dubno, and Nicole Neckles of counsel), for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jason R. Richards of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (St.George, J.), rendered August 22, 2012, convicting him of conspiracy in the fourth degree, after a nonjury trial, and imposing sentence. By decision and order on motion dated September 17, 2012, this Court, inter alia, granted the defendant's motion to stay execution of the judgment pending the hearing and determination of the appeal.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings pursuant to CPL 460.50(5).

Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that the verdicts are repugnant is without merit ( see People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617;People v. Payne, 40 A.D.3d 660, 660, 833 N.Y.S.2d 411), since his acquittals on the counts of scheme to defraud in the first degree, money laundering in the first degree, and money laundering in the second degree did not necessarily negate an essential element of conspiracy in the fourth degree.

Contrary to the defendant's contention, the testimony of a coconspirator was properly received into evidence under the coconspirator exception to the hearsay rule ( see People v. Green, 92 A.D.3d 953, 956, 939 N.Y.S.2d 520).

The defendant waived his contention that a document offered by the People...