Opinion
2016–07129 Ind. No. 8940/14
01-19-2022
The PEOPLE, etc., respondent, v. Christian MORALES, appellant.
Patricia Pazner, New York, NY (Cynthia Colt of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Terrence F. Heller of counsel), for respondent.
Patricia Pazner, New York, NY (Cynthia Colt of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Terrence F. Heller of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, SHERI S. ROMAN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered June 23, 2016, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to prove the intent element of manslaughter in the first degree ( Penal Law § 125.20[1] ; see Penal Law § 10.00[10] ) and to disprove his justification defense ( Penal Law § 35.15 ) is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal based upon the People's alleged failure to make out a prima facie case (see CPL 470.05[2] ; People v. Carncross, 14 N.Y.3d 319, 324–325, 901 N.Y.S.2d 112, 927 N.E.2d 532 ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of manslaughter in the first degree beyond a reasonable doubt (see People v. Fuentes, 185 A.D.3d 960, 962, 128 N.Y.S.3d 221 ; People v. Barnett, 163 A.D.3d 700, 701, 80 N.Y.S.3d 461 ; People v. Simpson, 151 A.D.3d 762, 763, 56 N.Y.S.3d 253 ). Specifically, the evidence was legally sufficient to prove the defendant's intent to cause serious physical injury (see Penal Law § 125.20[1] ) and to disprove justification (see Penal Law § 35.15 ). 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 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during cross-examination of the defendant and during the People's summation is largely unpreserved for appellate review since the defendant failed to object to the majority of the remarks at issue (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Anderson, 197 A.D.3d 713, 150 N.Y.S.3d 584 ). In any event, most of the challenged remarks were proper because they were within the broad bounds of rhetorical comment permissible in closing arguments, constituted a fair response to arguments made by defense counsel in summation, or constituted fair comment on the evidence (see People v. Anderson, 197 A.D.3d 713, 150 N.Y.S.3d 584 ). To the extent that certain remarks were improper, they were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Rodriguez, 199 A.D.3d 838, 156 N.Y.S.3d 432 ; People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ). Furthermore, defense counsel's failure to object to those remarks did not constitute ineffective assistance of counsel.
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.
CONNOLLY, J.P., HINDS–RADIX, ROMAN and DOWLING, JJ., concur.