People v. Nelson

• Decision Date: 05 May 2016
• Docket Number: 1379/10, 1056, 1177/08.
• Citation: 2016 N.Y. Slip Op. 03581,29 N.Y.S.3d 374,139 A.D.3d 436
• Parties: The PEOPLE of the State of New York, Respondent, v. Fred NELSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 436

29 N.Y.S.3d 374

2016 N.Y. Slip Op. 03581

The PEOPLE of the State of New York, Respondent,

v.Fred NELSON, Defendant–Appellant.

1379/10, 1056, 1177/08.

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

May 5, 2016.

Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.

SWEENY, J.P., ACOSTA, MANZANET–DANIELS, GISCHE, GESMER, JJ.

Judgments, Supreme Court, New York County (Michael R. Sonberg, J.), rendered December 23, 2013, convicting defendant, after a jury trial, of assault in the second degree, tampering with physical evidence and criminal possession of a weapon in the fourth degree, and upon his plea of guilty, of bail jumping in the second degree, and sentencing him to an aggregate term of five years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). With regard to the assault conviction, the evidence amply established that defendant caused physical injury to a police officer (see e.g. People v. Martinez, 90 A.D.3d 409, 933 N.Y.S.2d 285 [1st Dept.2011], lv. denied 18 N.Y.3d 960, 944 N.Y.S.2d 488, 967 N.E.2d 713 [2012] ). With regard to the tampering conviction, the evidence supports an inference that defendant destroyed his own phone because he believed it contained evidence that would be used against him (see People v. Atkins, 95 A.D.3d 731, 945 N.Y.S.2d 82 [1st Dept.2012], lv. denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012] ). With regard to the weapon conviction, the evidence established that defendant constructively possessed the gravity knife found near his feet in the car he had been driving for 3 days when arrested, regardless of the ownership of the car (see People v. Soto, 69 A.D.3d 531, 896 N.Y.S.2d 7 [1st Dept.2010], lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ).

We perceive no basis for reducing the sentence.