People v. Donovan

Jan 13, 2009
Reporters:
,

Ordered that the judgment and the amended judgment are affirmed.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury‘s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Further, although the jury acquitted the defendant of burglary in the first degree, robbery in the second degree, and other related charges, the jury verdict was not repugnant as a matter of law (see People v Tucker, 55 NY2d 1 [1981]). We further note that, under the circumstances, the jury was permitted to accept or reject portions of the complainant‘s testimony and portions of the defendant‘s own testimony (cf. People v Roman, 217 AD2d 431, 432 [1995]; People v Green, 113 AD2d 713, 715 [1985]). In any event, it is possible that the jury exercised mercy, which is not a ground for reversal where the verdict is not repugnant as a matter of law (see People v Rayam, 94 NY2d 557 [2000]; People v Tucker, 55 NY2d 1, 7 [1981]; People v Martinez, 201 AD2d 671, 672 [1994]; People v Montgomery, 116 AD2d 669, 670 [1986]).

In light of our determination, the defendant‘s contention that a reversal of the judgment rendered under indictment No. 612/05 would require reversal of the amended judgment rendered under Superior Court information No. 1790/04, is academic (see People v Wilkins, 176 AD2d 976, 978 [1991]).

Prudenti, P.J., Dillon, Eng and Leventhal, JJ., concur.