People v. Indivero

• Decision Date: 03 February 1995
• Citation: 212 A.D.2d 1019,624 N.Y.S.2d 1001
• Parties: PEOPLE of the State of New York, Respondent, v. John F. INDIVERO, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1001

624 N.Y.S.2d 1001

212 A.D.2d 1019

PEOPLE of the State of New York, Respondent, v. John F. INDIVERO, Jr., Appellant.

Supreme Court of New York, Appellate Division, Fourth Department.

Feb. 3, 1995.

Gerald T. Barth by Benjamin Coffin, Syracuse, for appellant.

William J. Fitzpatrick by Gordon Cuffy, Syracuse, for respondent.

MEMORANDUM:

We reserved decision and remitted this matter to Onondaga County Court for a reconstruction hearing (People v. Indivero, 202 A.D.2d 989, 610 N.Y.S.2d 918) in accordance with our decision in People v. Mitchell, 189 A.D.2d 337, 596 N.Y.S.2d 612. That hearing has been held. The contention of defendant that the court erred in finding that defendant was present at an in-chambers Sandoval conference is without merit; the record of the reconstruction hearing fully supports that finding.

Defendant's conviction is supported by legally sufficient evidence, and the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We further conclude that the jury's rejection of defendant's affirmative defense is not against the weight of the evidence (see, Penal Law § 40.15; People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd.432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281).

The contention of defendant that he was denied effective assistance of counsel is without merit (see, People v. Rivera, 71 N.Y.2d 705, 708-709, 530 N.Y.S.2d 52, 525 N.E.2d 698; People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Finally, we conclude that defendant's remaining contention is without merit (see, People v. Miller, 194 A.D.2d 230, 232, 607 N.Y.S.2d 507, lv. denied 83 N.Y.2d 913, 614 N.Y.S.2d 395, 637 N.E.2d 286).

Judgment unanimously affirmed. (Resubmission of Appeal from Judgment of Onondaga County Court, Mulroy, J.)

GREEN, J.P., and BALIO, LAWTON, DOERR and BOEHM, JJ., concur.