Opinion
882 KA 17-00931
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Azya M. GILBERT, Also Known as Azya Jackson/Azya Gilbert-Jackson, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DANIELLE C. WILD OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DANIELLE C. WILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of manslaughter in the first degree ( Penal Law § 125.20 [1] ). Defendant contends that the verdict is against the weight of the evidence with respect to her intent to cause serious physical injury. Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Given the number, depth, and severity of the stab wounds here, it cannot be said that the jury "failed to give the evidence the weight it should be accorded" ( id. ; see People v. Angel , 185 A.D.2d 356, 358, 586 N.Y.S.2d 622 [2d Dept. 1992], lv denied 80 N.Y.2d 1025, 1028, 1029, 592 N.Y.S.2d 674, 678, 679, 607 N.E.2d 821, 825, 826 [1992]).
Defendant failed to preserve for our review her further contention that she was denied a fair trial by alleged instances of prosecutorial misconduct (see CPL 470.05 [2] ; People v. Hall , 169 A.D.3d 1379, 1380, 92 N.Y.S.3d 504 [4th Dept. 2019], lv denied 33 N.Y.3d 976, 101 N.Y.S.3d 274, 124 N.E.3d 763 [2019] ; People v. Keels , 128 A.D.3d 1444, 1445, 8 N.Y.S.3d 783 [4th Dept. 2015], lv denied 26 N.Y.3d 969, 18 N.Y.S.3d 605, 40 N.E.3d 583 [2015] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Finally, the sentence is not unduly harsh or severe.