Opinion
May 10, 1990
Appeal from the Supreme Court, New York County (Thomas Galligan, J.).
On appeal, defendant urges that his conviction must be vacated since the testimony of the eyewitness to the shooting was contradicted by other witnesses. In that regard, the eyewitness stated at the trial that he accompanied defendant and the victim to a third-floor apartment in an upper Manhattan building. There, defendant shot his victim once. Other witnesses established that defendant was armed with a gun and that he and his victim had argued earlier in the evening. One of those witnesses, a security guard, observed defendant pointing the gun at his victim as defendant, the victim and the eyewitness proceeded to the third floor. Other evidence shows that defendant's right sneaker could have made the footprint found in the blood on the floor of the apartment where the shooting occurred and that defendant's clothing was stained with blood of a type that matched that of the deceased.
Viewing the evidence in the light most favorable to the prosecution, as we are required to do, the verdict must be sustained. The supposed inconsistencies in the evidence cited by defendant do not demonstrate that the jury failed to give appropriate weight to the proof which it considered (People v Bleakley, 69 N.Y.2d 490, 495). Moreover, his contention that the court's supplemental charge was unfair has not been preserved. However, even were we to reach this issue in the interests of justice, we would nevertheless affirm, finding the claim to be without merit. Defendant asserts that the court should not have given a further charge on accessorial liability when the jury asked for a repeat of its instructions on the definition of an accomplice. In its main and supplemental charge, the court submitted the question of whether the eyewitness was an accomplice (CPL 60.22) to the jury, and instructed the jury to consider whether defendant was guilty because he had acted in concert with the eyewitness. We perceive no basis in the record to indicate that the supplemental instruction placed undue emphasis on the supplemental comments on accessorial liability. The court meaningfully responded to the jury's request (CPL 310.30; People v. Malloy, 55 N.Y.2d 296, 298). We have reviewed defendant's remaining contentions, including those raised in his pro se supplemental brief, and find them to be either unpreserved for appellate review or lacking in merit.
Concur — Murphy, P.J., Carro, Milonas, Asch and Wallach, JJ.