People v. Nelson

People v Nelson (2016 NY Slip Op 03581)

People v Nelson

2016 NY Slip Op 03581

Decided on May 5, 2016

Appellate Division, First Department

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.

Decided on May 5, 2016
Sweeny, J.P., Acosta, Manzanet-Daniels, Gische, Gesmer, JJ.

1379/10 1056 1177/08

[*1]The People of the State of New York, Respondent,

v

Fred Nelson, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.

Judgments, Supreme Court, New York County (Michael R. Sonberg, J.), rendered December 23, 2013, convicting defendant, after a jury trial, of assault in the second degree, tampering with physical evidence and criminal possession of a weapon in the fourth degree, and upon his plea of guilty, of bail jumping in the second degree, and sentencing him to an aggregate term of five years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). With regard to the assault conviction, the evidence amply established that defendant caused physical injury to a police officer (see e.g. People v Martinez, 90 AD3d 409 [1st Dept 2011], lv denied 18 NY3d 960 [2012]). With regard to the tampering conviction, the evidence supports an inference that defendant destroyed his own phone because he believed it contained evidence that would be used against him (see People v Atkins, 95 AD3d 731 [1st Dept 2012], lv denied 19 NY3d 994 [2012]). With regard to the weapon conviction, the evidence established that defendant constructively possessed the gravity knife found near his feet in the car he had been driving for 3 days when arrested, regardless of the ownership of the car (see People v Soto, 69 AD3d 531 [1st Dept 2010], lv denied 14 NY3d 893 [2010]). We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 5, 2016

DEPUTY CLERK