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The People of the State of New York v. Jules Fevoy

May 21, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
JULES FEVOY,
APPELLANT.



Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Shari Michels, J.), rendered August 12, 2010.

People v Fevoy (Jules)

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 21, 2012

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

The judgment convicted defendant, after a non-jury trial, of attempted assault in the third degree, menacing in the third degree and harassment in the second degree.

ORDERED that the judgment of conviction is modified, on the law, by vacating the sentence imposed, and the matter is remitted to the Criminal Court for resentencing; as so modified, the judgment of conviction is affirmed.

Defendant was convicted of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26 [1]). Viewing the evidence in the light most favorable to the People (see People v Hawkins, 11 NY3d 484, 493 [2008]), we find, contrary to defendant's contention, that the evidence was legally sufficient to sustain defendant's conviction of all three offenses. In conducting our independent weight of the evidence review (see CPL 470.15 [5]), we assess the evidence in this non-jury trial in light of the elements of the offenses (see People v Danielson, 9 NY3d 342, 348-349 [2007]), and accord great deference to the Criminal Court's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the credible evidence with respect to any of the charges.

However, CPL 380.20 requires that where convictions are entered on multiple charges, the court must pronounce sentence upon each charge (see People v Sturgis, 69 NY2d 816, 817 [1987]; People v Sacco, 294 AD2d 452, 453 [2002]; People v Caravousanos, 2 Misc 3d 7, 11 [App Term, 9th & 10th Jud Dists 2003]). Since the Criminal Court erred in imposing a single term of imprisonment of 90 days covering two class B misdemeanors and a violation, the latter of which carries a maximum sentence of 15 days (Penal Law § 70.15 [4]), the sentence is vacated and the matter is remitted to the Criminal Court for resentencing (see People v Henry, 80 AD3d 625, 626 [2011]).

In view of the foregoing, the issues raised on appeal concerning the excessiveness of the sentence are rendered moot.

Pesce and Rios, JJ., concur.

Weston, J.P., dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum:

Assuming the verdict was legally sufficient, I would nevertheless set it aside as against the weight of the evidence (see CPL 470.15; People v Romero, 7 NY3d 633 [2006]). Accordingly, I respectfully dissent and vote to reverse defendant's ...


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