Opinion
2019–06374 Ind. No. 97/17
07-05-2023
The PEOPLE, etc., respondent, v. Eswin GRAMAJO, appellant.
Patricia Pazner, New York, NY (Leila Hull of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Keith Dolan, and Sawyer White of counsel), for respondent.
Patricia Pazner, New York, NY (Leila Hull of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Keith Dolan, and Sawyer White of counsel), for respondent.
BETSY BARROS, J.P., PAUL WOOTEN, WILLIAM G. FORD, BARRY E. WARHIT, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jill Konviser, J.), rendered May 8, 2019, convicting him of manslaughter in the first degree and assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of manslaughter in the first degree beyond a reasonable doubt (see People v. Rivera, 23 N.Y.3d 112, 124, 989 N.Y.S.2d 446, 12 N.E.3d 444 ; People v. Nafi, 132 A.D.3d 1301, 1302, 18 N.Y.S.3d 233 ; People v. Gill, 20 A.D.3d 434, 434, 798 N.Y.S.2d 507 ). 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, 348, 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 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to that crime was not against the weight of the evidence (see People v. Nafi, 132 A.D.3d at 1302, 18 N.Y.S.3d 233 ; People v. McFadden, 168 A.D.2d 461, 461, 562 N.Y.S.2d 580 ).
The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2] ; People v. Alvardo, 203 A.D.3d 941, 942, 161 N.Y.S.3d 807 ). In any event, although certain of the prosecutor's remarks would have been better left unsaid, they were not, either individually or collectively, so egregious as to deprive the defendant of a fair trial (see People v. Reid, 212 A.D.3d 845, 846, 182 N.Y.S.3d 228 ; People v. Morales, 201 A.D.3d 819, 819–820, 160 N.Y.S.3d 100 ).
Contrary to the defendant's contention, the Supreme Court properly declined to include a charge of assault in the second degree as a lesser included offense of assault in the first degree. " ‘A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry’ " ( People v. Milonovich, 215 A.D.3d 764, 764, 185 N.Y.S.3d 713, quoting People v. Rivera, 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 ). "First, ‘the crime must be a lesser included offense’ " ( People v. Milonovich, 215 A.D.3d at 764, 185 N.Y.S.3d 713, quoting People v. Rivera, 23 N.Y.3d at 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 ). "Second, the party making the request for a charge-down must ‘show that there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser included offense but not the greater’ " ( People v. Milonovich, 215 A.D.3d at 764–765, 185 N.Y.S.3d 713, quoting People v. Rivera, 23 N.Y.3d at 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 ). The evidence must be viewed in the light most favorable to the defendant (see People v. Flores, 165 A.D.3d 695, 696, 84 N.Y.S.3d 543 ). Here, the first prong is satisfied because assault in the second degree is a lesser included offense of assault in the first degree (see People v. Burnett, 100 A.D.3d 1561, 1562, 954 N.Y.S.2d 391 ). However, the second prong is not satisfied. Viewing the record in the light most favorable to the defendant (see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 ), there was no reasonable view of the evidence to support a finding that the defendant intended to cause physical injury, but not serious physical injury, to a victim whom the defendant stabbed multiple times in the neck and back (see People v. Davis, 90 A.D.3d 461, 461, 934 N.Y.S.2d 150 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BARROS, J.P., WOOTEN, FORD and WARHIT, JJ., concur.