legal insufficiency claim in New York

2020To the extent that defendant's contention on appeal is viewed as a legal insufficiency claim, it is not preserved for appellate review since defendant failed to move to dismiss the charge following the close of all of the evidence at trial ( see CPL 470.05 [2]; People v Gray , 86 NY2d 10, 19-20 [1995]), and we decline to review it as a matter of discretion in the interest of justice ( see People v Devaul , 60 Misc 3d 130[A] , 2018 NY Slip Op 50993[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

2019To the extent that defendant's contention on appeal is viewed as a legal insufficiency claim, the issue is not preserved for appellate review, since defendant failed to move to dismiss the charge based upon that ground at trial ( see CPL 470.05 [2]; People v Gray , 86 NY2d 10, 19 [1995]; People v Olsen , 124 AD3d 1084 [2015]).

2020However, upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one appellate review of adverse factual findings" ( People v Danielson , 9 NY3d 342, 348 [2007]).

2019However, upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one [*2] appellate review of adverse factual findings" ( People v Danielson , 9 NY3d 342, 348 [2007]; see also People v Joyner , 126 AD3d 1002 [2015]).

2017In any event, the verdict was not legally repugnant (see People v Muhammad, 17 NY3d 532, 540 [2011]), because, under the court’s charge, the jury could have found defendant guilty of burglary (under a theory of intent to commit an unspecified crime), but not guilty of robbery, and the factually mixed verdict does not result in legal insufficiency (see People v Abraham, 22 NY3d 140, 146-147 [2013]).

2017In any event, as defendant appears to concede, the verdict was not legally repugnant (see People v Muhammad, 17 NY3d 532, 540 [2011]), because, under the court’s charge, the jury could have found the affirmative defense established as to the burglary and robbery counts but not the criminal sexual act and sex abuse counts (see People v Justice, 173 AD2d 144 [4th Dept 1991]).

2019However, upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one [*2] appellate review of adverse factual findings" ( People v Danielson , 9 NY3d 342, 348 [2007]; see also People v Joyner , 126 AD3d 1002 [2015]).

2018The legal insufficiency claim is unpreserved, as defendant's motion for a trial order of dismissal was not specifically based upon the identification issue ( see People v Gray , 86 NY2d 10, 19 [1995]; People v Green , 141 AD3d 1036, 1037 [2016], lv denied 28 NY3d 1072 [2016]).

2018Nevertheless, defendant's challenge to the weight of the evidence requires this Court to determine whether each element of the charged crime was proven beyond a reasonable doubt ( see People v Danielson , 9 NY3d 342, 348-349 [2007]; People v Scippio , 144 AD3d 1184, 1185 [2016], lv denied 28 NY3d 1150 [2017]).

2017In any event, the verdict was not legally repugnant (see People v Muhammad, 17 NY3d 532, 540 [2011]), because, under the court’s charge, the jury could have found defendant guilty of burglary (under a theory of intent to commit an unspecified crime), but not guilty of robbery, and the factually mixed verdict does not result in legal insufficiency (see People v Abraham, 22 NY3d 140, 146-147 [2013]).

2016In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15 [5]; People Danielson , 9 NY3d 342, 348-349 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility ( see People v Lane , 7 NY3d 888 , 890 [2006]; People v Bleakley , 69 NY2d 490, 495 [1987]).

2009The defendant’s legal insufficiency claim is not preserved for appellate review to the extent it is premised upon whether there was legally sufficient evidence to prove, beyond a reasonable doubt, that he abducted the victim by using or threatening to use deadly force (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]; People v Payne, 3 NY3d 266, 280 [2004]).

2008People v Ferraro, 49 AD3d 550, 551 [2008]; People v Fields, 37 AD3d 733 [2007]).

2007If the trier of fact has not given the evidence the weight it should be accorded, we must set aside the verdict pursuant to CPL 470.20 (5) (see People v Conway, 6 NY3d 869,870 [2006] [upon rejection of the defendant’s legal insufficiency claim, the case was remitted to this Court for “consideration of the facts” pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b)]).

1995(See, People v Waterman, 9 NY2d 561, 565; CPL 210.20 [1].) A defendant may waive a legal insufficiency claim with respect to an indictment by pleading guilty (see, People v Kazmarick, 52 NY2d 322, 326 ) or by failing to raise the issue in timely fashion (see, People ex rel.