Opinion
2011-11677
01-25-2017
The People of the State of New York, respondent, v. Donovan Gilliard, appellant.
Del Atwell, East Hampton, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
JOHN M. LEVENTHAL SHERI S. ROMAN HECTOR D. LASALLE, JJ. (Ind. No. 83/10)
Del Atwell, East Hampton, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered November 28, 2011, convicting him of murder in the second degree and assault in the first degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The County Court providently exercised its discretion in denying the defendant's request to admit into evidence the codefendant's out-of-court statement to a police officer as a declaration against penal interest. The portion of the statement that the defendant sought to admit did not directly inculpate the codefendant (see People v Geoghegan, 51 NY2d 45, 49; People v Coleman, 125 AD3d 879, 880). Rather, the statement was made under circumstances which suggest that it was intended to minimize the codefendant's criminal involvement (see People v Toussaint, 74 AD3d 846, 846; People v Singh, 47 AD3d 733, 734). Since the statement was properly excluded as inadmissible hearsay, the defendant's contention that his constitutional right to present a defense was violated is without merit (see People v Xing Chen, 117 AD3d 762, 763).
The defendant's contentions that the evidence was legally insufficient to disprove his justification defense beyond a reasonable doubt and to support his convictions are unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 491-492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to disprove the defendant's justification defense and to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the rejection of the justification defense and the verdict of guilt were not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The defendant's remaining contention is unpreserved for appellate review (see CPL 470.05[2]) and, in any event, without merit.
BALKIN, J.P., LEVENTHAL, ROMAN and LASALLE, JJ., concur. ENTER:
Aprilanne Agostino
Clerk of the Court