People v. Musmacher
Decision Date | 27 March 2007 |
Docket Number | 2004-04657. |
Citation | 2007 NY Slip Op 02779,833 N.Y.S.2d 162,38 A.D.3d 920 |
Court | New York Supreme Court — Appellate Division |
Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DONALD MUSMACHER, Appellant. |
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Calabria, 3 NY3d 80, 82 [2004]). Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]).
The defendant's first trial ended in a mistrial because his attorney learned during the trial that he had a conflict of interest, having previously represented a prosecution witness. Contrary to the defendant's contention, his retrial, which resulted in the instant conviction, was not barred by double jeopardy because he consented to the mistrial (see People v Catten, 69 NY2d 547, 558 [1987]).
The County Court properly imposed consecutive sentences on the defendant's convictions for burglary in the first degree and robbery in the first degree (see People v Yong Yun Lee, 92 NY2d 987, 989 [1998]).
We reject the defendant's contention that, in sentencing him as a second violent felony offender, the County Court improperly denied the defendant an opportunity to raise a constitutional challenge to the pertinent prior conviction (see CPL 400.15). The defendant's allegations "were bare of facts sufficient to support a finding of unconstitutionality," and under the circumstances, the County Court did not err in failing to hold a hearing (see People v Cooper, 241 AD2d 553, 554 [1997]; People v Covington, 233 AD2d 169 [1996]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]), and there is no merit to the defendant's contention that he was punished for exercising his right to a trial (see People v Goolsby, 213 AD2d 722, 722-723 [1995];...
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People v. Ellis
...Upon our review of the entire colloquy, we find that defendant requested and, thus, consented to a mistrial (see People v. Musmacher, 38 A.D.3d 920, 921, 833 N.Y.S.2d 162 [2007], lv denied 8 N.Y.3d 988, 838 N.Y.S.2d 491, 869 N.E.2d 667 [2007] ; see generally People v. Ferguson, 67 N.Y.2d at......
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People v. Musmacher
...N.E.2d 667 8 N.Y.3d 988 PEOPLE v. MUSMACHER. Court of Appeals of the State of New York. May 25, 2007. Appeal from the 2d Dept.: 38 A.D.3d 920, 833 N.Y.S.2d 162 Application for leave to criminal appeal denied. (Graffeo, J.) ...
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