Opinion
2000-03732, 2000-03734
Submitted May 6, 2002.
June 18, 2002.
Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered April 7, 2000, convicting him of manslaughter in the first degree under Indictment No. 1300/99, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered April 7, 2000, revoking a sentence of probation previously imposed by the same court (Ferdinand, J.), upon a finding that he had violated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of stolen property in the fourth degree under Indictment No. 739/96.
Arza Feldman, Hauppauge, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Amanda D. Flug on the brief), for respondent.
Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, JJ.
ORDERED that the judgment and the amended judgment are affirmed.
Contrary to the People's contention, the defendant preserved for appellate review his contention that the court committed reversible error in failing to charge manslaughter in the second degree as a lesser-included offense of the indictment charge of murder in the second degree, as the defense counsel specifically requested (see CPL 470.05). Nevertheless, we find no error, because considering the evidence in the light most favorable to the defendant, there is no reasonable view of the evidence which would support a finding that the defendant committed the lesser offense, but not the greater (see People v. Ford, 62 N.Y.2d 275, 281; People v. Martin, 59 N.Y.2d 704, 705).
The defendant's general motion to dismiss, at the close of the People's case, failed to preserve for appellate review his argument that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt (see CPL 470.05; People v. Gray, 86 N.Y.2d 10, 19-20; People v. Udzinski, 146 A.D.2d 245, 246). In any event, viewing the evidence in the light most favorable to the prosecution, we find it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Contes, 60 N.Y.2d 620; People v. Marzug, 280 A.D.2d 974). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15; People v. Larkin, 260 A.D.2d 403; People v. White, 192 A.D.2d 736; People v. Rios, 180 A.D.2d 696).
RITTER, J.P., KRAUSMAN, FRIEDMANN and LUCIANO, JJ., concur.