NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
February 18, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ERIK RAMALES, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered March 29, 2006, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 5 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Catterson, Renwick, DeGrasse, Manzanet-Daniels, JJ.
Defendant's legal sufficiency argument is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that the verdict was based on legally sufficient evidence. We also conclude that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). There is no basis for disturbing the jury's determinations concerning credibility. A witness provided a detailed account of defendant's active participation in the shooting. The jury had a rational, nonspeculative basis to find that this testimony was reliable, and that another prosecution witness who gave a different version of the incident was mistaken (see People v Fratello, 92 NY2d 565, 573-575 , cert denied 526 US 1068 ; People v Jackson, 65 NY2d 265, 272 ).
The court properly declined to sentence defendant as a youthful offender. Since defendant was convicted of an armed felony, youthful offender treatment would require a showing of mitigating circumstances (CPL 720.10[a][ii];), and we do not find that such circumstances were present. In any event, given the seriousness of the crime, youthful offender treatment was not warranted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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