People v. Cabrera, 221 A.D.2d 461 (N.Y. App. Div. 1995). · Go Syfert
People v. Cabrera, 221 A.D.2d 461 (N.Y. App. Div. 1995). Cases Citing This Book View Copy Cite
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The People of the State of New York
v.
Carmelo Cabrera
Appellate Division of the Supreme Court of the State of New York.
Nov 13, 1995.
221 A.D.2d 461
Cited by 6 opinions  |  Published

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joy, J.), rendered May 7, 1992, convicting him of assault in the second degree and menacing, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People, v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s claim that his conviction of assault in the second degree was repugnant to his acquittal of criminal possession of a weapon in the fourth degree is unpreserved for appellate review because he failed to raise this argument prior to the discharge of the jury (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10; People v Alfaro, 66 NY2d 985, 987; People v Buford, 198 AD2d 55; People v Cruz, 175 AD2d 212). In any event, the defendant’s claim of repugnancy is without merit. Viewing the elements of the crimes as charged to the jury (see, People v Tucker, 55 NY2d 1, 7), the jury could have found the defendant guilty of assault in the second degree while also concluding that he was not guilty of criminal possession of a weapon in the fourth degree. O’Brien, J. P., Pizzuto, Santucci and Krausman, JJ., concur.