Opinion
2011-08-2
The PEOPLE, etc., respondent,v.Wilfredo AVILES, appellant.
Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered December 11, 2008, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the identification evidence ( see CPL 470.05 [2]; People v. Hawkins, 11 N.Y.3d 484, 493, 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, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's identity as the shooter.
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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; 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. Gomez, 46 A.D.3d 836, 848 N.Y.S.2d 282; People v. Lobo, 6 A.D.3d 550, 774 N.Y.S.2d 402; People v. Dupont, 283 A.D.2d 587, 724 N.Y.S.2d 901; People v. Pinder, 269 A.D.2d 547, 704 N.Y.S.2d 482).
The defendant's contention that the sentencing court considered improper factors in imposing sentence is unpreserved for appellate review ( see CPL 470.05[2]; People v. Garson, 69 A.D.3d 650, 652, 892 N.Y.S.2d 511; People v. Campbell, 54 A.D.3d 959, 960, 863 N.Y.S.2d 827; People v. Santos–Mispas, 38 A.D.3d 923, 831 N.Y.S.2d 344). In any event, the claim is without merit ( see People v. Garson, 69 A.D.3d at 652, 892 N.Y.S.2d 511; People v. Campbell, 54 A.D.3d at 960, 863 N.Y.S.2d 827; People v. Santos–Mispas, 38 A.D.3d 923, 831 N.Y.S.2d 344). The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).