Opinion
2015–00057 2015–01919 Ind. No. 676/11
01-17-2018
The PEOPLE, etc., respondent, v. Oneil MAIRS, appellant.
Paul Skip Laisure, New York, N.Y. (William Kastin of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (William Kastin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.
L. PRISCILLA HALL, J.P., JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDERAppeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 16, 2014, and (2) an amended judgment of the same court rendered January 7, 2015, convicting him of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the appeal from the judgment is dismissed, as the judgment was superseded by the amended judgment; and it is further,
ORDERED that the amended judgment is affirmed.
The defendant was convicted of manslaughter in the second degree ( Penal Law § 125.15[1] ), criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ), and reckless endangerment in the first degree ( Penal Law § 120.25 ), arising out of the shooting death of a young woman at a house party in Queens.
"The statutory definition of accessory liability provides that ‘[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct’ " ( People v. Carpenter, 138 A.D.3d 1130, 1131, 30 N.Y.S.3d 299, quoting Penal Law § 20.00 ; see People v. Scott, 25 N.Y.3d 1107, 1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 ). "Inasmuch as the statute requires that the accomplice act with the mental culpability required for the commission of the underlying crime, an accomplice must have a shared intent, or ‘community of purpose’ with the principal" ( People v. Carpenter, 138 A.D.3d at 1131, 30 N.Y.S.3d 299, quoting People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 ; see People v. Scott, 25 N.Y.3d at 1110, 14 N.Y.S.3d 308, 35 N.E.3d 476 ).
The defendant's current challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since he failed to advance his present arguments as a basis for dismissal in the trial court (see CPL 470.05[2] ; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Kearney, 25 A.D.3d 622, 623, 806 N.Y.S.2d 885 ). 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 beyond a reasonable doubt the defendant's guilt of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, based on an acting-in-concert theory (see Penal Law §§ 20.00 ; 125.15[1]; 265.03[1] [b]; 120.25). 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 factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 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 ; People v. Rizzo, 142 A.D.3d 1187, 38 N.Y.S.3d 79 ).
The defendant's contention that he was deprived of a fair trial when the Supreme Court admitted into evidence certain allegedly inflammatory photographs is without merit. Photographic evidence "should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant" ( People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637 ; see People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278 ; People v. Thomas, 99 A.D.3d 737, 738, 951 N.Y.S.2d 581 ). When allegedly inflammatory photographs are relevant to a material issue at trial, the court has broad discretion to determine whether the probative value of the photographs outweighs any prejudice to the defendant (see People v. Stevens, 76 N.Y.2d at 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278 ; People v. Thomas, 99 A.D.3d at 738, 951 N.Y.S.2d 581 ). Here, the photographs at issue were relevant to material issues in the case, and the court did not improvidently exercise its discretion in admitting them into evidence. Contrary to the defendant's contentions, the photographs were not so inflammatory as to have deprived him of a fair trial.
The defendant's contentions regarding alleged prosecutorial misconduct during summation are without merit. The prosecutor's comments were either fair comment on the evidence and the reasonable inferences to be drawn therefrom or responsive to defense counsel's summation, or otherwise did not deprive the defendant of a fair trial (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. King, 144 A.D.3d 1176, 1176–1177, 41 N.Y.S.3d 751 ; People v. Nanand, 137 A.D.3d 945, 947–948, 26 N.Y.S.3d 585 ; People v. Willis, 122 A.D.3d 950, 997 N.Y.S.2d 472 ; People v. Hoke, 111 A.D.3d 959, 976 N.Y.S.2d 137 ; People v. McGowan, 111 A.D.3d 850, 975 N.Y.S.2d 147 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.