Opinion
01-28-2015
The PEOPLE, etc., respondent, v. Herburtho BENJAMIN, appellant.
James Layton Koenig, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
James Layton Koenig, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered July 16, 2009, convicting him of manslaughter in the second degree, attempted assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's assertion, his contention that the evidence was legally insufficient to support his conviction of manslaughter in the second degree, under a theory of mutual combat, is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492–493, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290 ). 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 guilt beyond a reasonable doubt. 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 ; 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 sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.
BALKIN, J.P., COHEN, DUFFY and LaSALLE, JJ., concur.