This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 33,119 4 MARK MARTINEZ-THORMAN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Stan Whitaker, District Judge 8 Hector H. Balderas, Attorney General 9 Margaret McLean, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Steven J. Forsberg, Assistant Appellate Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 18 {1} Defendant appeals from the district c ourt’s judgment and sentence convicting 19 him of possession of a contro lled substance and sentencing him to nine and a half 202 years under the habitual offender statute. On appeal, Defendant argues: (1) he was 1 illegally seized and evidence obtained as a result of the seizure should have been 2 suppressed; (2) insufficient evidence was presented to support his conviction; and (3) 3 he was denied effective as sistance of counsel. The Stat e concedes the merits of 4 Defendant’s seizure claim and does not an swer Defendant’s arguments related to 5 sufficiency of the evidence and in effective assistance of counsel. 6 {2} We are not bound by the State’s conce ssion that Defendant’s seizure was 7 unlawful. State v. Guerra , 2012-NMSC-027, ¶ 9, 284 P.3d 1076; see State v. 8 Caldwell , 2008-NMCA-049, ¶ 8, 143 N.M. 792, 182 P.3d 775 (“This Court, however, 9 is not bound by the [s]tate’s concession[,] and we conduct our own analysis[.]”). Our 10 review of the trial testimony, along with a lapel recording of Defendant’s encounter 11 with police introduced at trial, supports the State’s position that Defendant was 12 improperly seized and that the physical evid ence recovered as a result of that seizure 13 should have been suppressed. See State v. Martinez , 2015-NMCA-___, ¶ 15, ___P.3d 14 ___ (No. 32,516, Jan. 6, 2015) (“[R]eviewi ng a video by itself is like reviewing any 15 other documentary evidence, and we are inas good a position as the district court to 16 view the video and interpret what it show s.”). We accept the State’s concession and 17 reverse Defendant’s convi ction on that basis. 183 {3} Defendant contends that without the physical evidence there is insufficient 1 evidence to support his conviction. Because the State does not argue that sufficient 2 evidence exists, we conclude that Defendantis entitled to a dismissal rather than a 3 new trial. See State v. Templeton , 2007-NMCA-108, ¶ 27, 142 N.M. 369, 165 P.3d 4 1145 (explaining that the defendant “would beentitled to a dismissal of the charges 5 on remand if the evidence adduced at trial was insufficient to support the conviction” 6 (alteration, internal quotati on marks, and citation omitted )). Therefore, Defendant’s 7 ineffective assistance claim is moot. See Crutchfield v. N.M. Dep’t of Taxation & 8 Revenue , 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (“A reviewing court 9 generally does not decide acad emic or moot questions.”). 10 CONCLUSION 11 {4} For the foregoing reasons we reverse. 12 {5} IT IS SO ORDERED. 13

14 M. MONICA ZAMORA, Judge 15 WE CONCUR: 16

17 MICHAEL D. BUSTAMANTE, Judge 18 19 JONATHAN B. SUTIN, Judge 20