People v. Simmons, 73 A.D.3d 1095

Ordered that the judgment is affirmed.

The defendant’s challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In any event, 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. Moreover, 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]).

The defendant’s claim that he was improperly adjudicated a second felony offender also is unpreserved for appellate review (see People v Smith, 73 NY2d 961 [1989]; People v Delston, 30 AD3d 536 [2006]) and, in any event, is without merit.

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Skelos, J.P., Angiolillo, Leventhal and Roman, JJ., concur.

Case Details

Case Name: People v. Simmons

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: May 18, 2010

Citations: 73 A.D.3d 1095; 900 N.Y.S.2d 678

Court Abbreviation: N.Y. App. Div.