Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered March 28, 2011. The judgment convicted defendant, upon a jury verdict, of official misconduct. The judgment was affirmed by order of this Court entered December 21, 2012 in a memorandum decision (101 A.D.3d 1659), and defendant on January 4, 2013 was granted leave to appeal to the Court of Appeals from the order of this Court (20 N.Y.3d 1013), and the Court of Appeals on June 11, 2013 reversed the order and remitted the case to this Court for further consideration (___ N.Y.3d ___).
MARY J. FAHEY, SYRACUSE, FOR DEFENDANT-APPELLANT.
BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed and the matter is remitted to Seneca County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: This case is before us upon remittal from the Court of Appeals (People v Mason, 101 A.D.3d 1659, revd ___ N.Y.3d ___ [June 11, 2013]). We previously affirmed the judgment convicting defendant, following a second jury trial, of official misconduct (Penal Law § 195.00 ). Although defendant contended, inter alia, that the verdict following the first trial was "against the weight of the evidence, " we interpreted that contention as a challenge to the verdict in the first trial on the ground of repugnancy or inconsistency (Mason, 101 A.D.3d at 1660-1661). We concluded that defendant's contention was not preserved for our review and that, in any event, the verdict was neither repugnant nor inconsistent (id. at 1661). The Court of Appeals determined that defendant's contention was a challenge to the weight of the evidence, and therefore reversed our order and remitted the matter to this Court for consideration of that contention (Mason, ___ N.Y.3d at ___).
Upon remittitur, and viewing the evidence in light of the elements of the crime of official misconduct as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349; People v Rayam, 94 N.Y.2d 557, 563 n; People v Vazquez, 103 A.D.3d 460, 461), we conclude that the verdict in the first trial was not against the weight of the evidence (see People v Bleakley, 69 N.Y.2d 490, 495). "[T]he fact that the jury acquitted defendant of [other] charge[s] does not warrant a different conclusion" (People v Rodriguez, 62 A.D.3d 460, 460, lv denied13 N.Y.3d 748; se ...