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People v. Damelio

Appellate Division of the Supreme Court of New York, First Department
Jun 29, 1995
216 A.D.2d 251 (N.Y. App. Div. 1995)

Opinion

June 29, 1995

Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).


Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference ( People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), defendant's guilt was proven beyond a reasonable doubt by legally sufficient evidence, and upon an independent review of the facts, the verdict was not against the weight of the evidence ( People v Bleakley, 69 N.Y.2d 490).

The issue of whether defendant was intoxicated while operating a motor vehicle was properly placed before the jury, and we find no reason to disturb its determination. Nor was defendant deprived of a fair trial by the presence in the courtroom of members of the victims' families, since family members of both defendant and the victims had been in the courtroom previously during the trial. Defendant's claim that the sympathy thereby aroused was compounded by the prosecutor's summation comment that one of the victims was so seriously injured that she had to wear diapers, was the subject of an immediate curative instruction to which no further objection was made ( see, People v. Medina, 53 N.Y.2d 951, 953). In view of the overwhelming evidence of defendant's guilt, we find such error, if any, to have been harmless ( People v. Berkowitz, 182 A.D.2d 536, 537, lv denied 80 N.Y.2d 973). We have considered defendant's remaining argument and find it to be unpreserved and without merit.

Concur — Rosenberger, J.P., Kupferman, Asch, Nardelli and Mazzarelli, JJ.


Summaries of

People v. Damelio

Appellate Division of the Supreme Court of New York, First Department
Jun 29, 1995
216 A.D.2d 251 (N.Y. App. Div. 1995)
Case details for

People v. Damelio

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DIANE DAMELIO…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 29, 1995

Citations

216 A.D.2d 251 (N.Y. App. Div. 1995)
629 N.Y.S.2d 227