Opinion
2015–00490 Ind.No. 676/11
01-17-2018
The PEOPLE, etc., respondent, v. Nicholas ALLEN, appellant.
Seymour W. James, Jr., New York, N.Y. (Allen Fallek of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Allen Fallek of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.
L. PRISCILLA HALL, J.P., JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 16, 2014, as amended January 7, 2015, convicting him of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment, as amended, is affirmed.
The defendant was convicted of manslaughter in the second degree ( Penal Law § 125.15[1] ), criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ), and reckless endangerment in the first degree ( Penal Law § 120.25 ), arising out of the shooting death of a young woman at a house party in Queens.
"The statutory definition of accessory liability provides that ‘[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct’ " ( People v. Carpenter, 138 A.D.3d 1130, 1131, 30 N.Y.S.3d 299, quoting Penal Law § 20.00 ; see People v. Scott, 25 N.Y.3d 1107, 1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 ). "Inasmuch as the statute requires that the accomplice act with the mental culpability required for the commission of the underlying crime, an accomplice must have a shared intent, or ‘community of purpose’ with the principal" ( People v. Carpenter, 138 A.D.3d at 1131, 30 N.Y.S.3d 299, quoting People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 ; see People v. Scott, 25 N.Y.3d at 1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 ). Contrary to the defendant's contention, the evidence was legally sufficient to establish beyond a reasonable doubt his guilt of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, based on an acting-in-concert theory (see Penal Law §§ 20.00 ;
125.15[1]; 265.03[1][b]; 120.25). 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 factfinder'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, 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 NY.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Rizzo, 142 A.D.3d 1187, 38 N.Y.S.3d 79 ).
The defendant's contentions regarding alleged prosecutorial misconduct are without merit. The prosecutor's comments on summation were either fair comment on the evidence and the reasonable inferences to be drawn therefrom or responsive to defense counsel's summation, or otherwise did not deprive the defendant of a fair trial (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. King, 144 A.D.3d 1176, 1176–1177, 41 N.Y.S.3d 751 ; People v. Nanand, 137 A.D.3d 945, 947–948, 26 N.Y.S.3d 585 ; People v. Willis, 122 A.D.3d 950, 997 N.Y.S.2d 472 ; People v. Hoke, 111 A.D.3d 959, 976 N.Y.S.2d 137 ; People v. McGowan, 111 A.D.3d 850, 975 N.Y.S.2d 147 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.