Opinion
2015-03-25
The PEOPLE, etc., respondent, v. Anatoly VALENKO, appellant.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, AND SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joel Goldberg, J.), rendered December 13, 2011, convicting him of murder in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's claim that the trial court improperly discharged potential jurors based upon hardship without conducting a sufficient inquiry is unpreserved for appellate review ( see People v. Cunningham, 119 A.D.3d 601, 601, 988 N.Y.S.2d 696; People v. King, 110 A.D.3d 1005, 1006, 973 N.Y.S.2d 353; People v. Casanova, 62 A.D.3d 88, 875 N.Y.S.2d 31). In any event, the defendant's contention is without merit ( see People v. King, 110 A.D.3d at 1006, 973 N.Y.S.2d 353; People v. Umana, 76 A.D.3d 1111, 1112, 908 N.Y.S.2d 244; People v. Boozer, 298 A.D.2d 261, 748 N.Y.S.2d 379).
While the People's case was based entirely on circumstantial evidence, viewing the evidence in the light most favorable to the prosecution, and giving it the benefit of every reasonable inference to be drawn therefrom ( see People v. Lewis, 64 N.Y.2d 1111, 1112, 490 N.Y.S.2d 166, 479 N.E.2d 802; 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 beyond a reasonable doubt ( see People v. Cartwright, 61 A.D.3d 695, 695, 877 N.Y.S.2d 136). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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 trial court properly instructed the jury on accomplice liability inasmuch as “ ‘there was a reasonable view of the evidence to support the charge’ ” (People v. Rizzo, 78 A.D.3d 1641, 1642, 910 N.Y.S.2d 743; quoting People v. Pierre, 41 A.D.3d 289, 291, 838 N.Y.S.2d 546).
Contrary to the defendant's contention, the trial court did not improvidently exercise its discretion in admitting into evidence certain photographs depicting the victims. “Photographic evidence ‘should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ ” (People v. Dorcinvil, 122 A.D.3d 874, 876, 996 N.Y.S.2d 661, quoting People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637; see People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278; People v. Thompson, 108 A.D.3d 732, 733, 969 N.Y.S.2d 168; People v. Thomas, 99 A.D.3d 737, 738, 951 N.Y.S.2d 581). Here, the photographs were not offered for the sole purpose of arousing the emotions of the jurors ( see People v. Dorcinvil, 122 A.D.3d at 876, 996 N.Y.S.2d 661; People v. Sampson, 67 A.D.3d 1031, 1032, 890 N.Y.S.2d 557). Moreover, the photographs were not so inflammatory as to have deprived the defendant of a fair trial ( see People v. Dorcinvil, 122 A.D.3d at 876, 996 N.Y.S.2d 661; People v. Thompson, 108 A.D.3d at 733, 969 N.Y.S.2d 168; People v. Thomas, 99 A.D.3d at 738, 951 N.Y.S.2d 581).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).