Summary
finding verdict of guilt was not against the weight of the evidence when defendant continued shooting even after the victim had fallen
Summary of this case from Spells v. LeeOpinion
July 24, 1995
Appeal from the Supreme Court, Kings County (Juviler, J.).
Ordered that the judgment is affirmed.
The defendant contends that the People failed to disprove his justification defense beyond a reasonable doubt. This issue is unpreserved for appellate review ( see, CPL 470.05; People v. Torres, 182 A.D.2d 788; People v. Udzinski, 146 A.D.2d 245, 250). In any event, viewing the evidence adduced at trial in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620), the record establishes that the defense of justification was disproved beyond a reasonable doubt ( see, People v. Torres, supra; People v. White, 178 A.D.2d 672). The defendant and the victim were outside a post office building in Brooklyn. They were with Michele Green, the defendant's former girlfriend and the victim's current girlfriend. The defendant and the victim started arguing and the defendant, a postal police officer, pulled out his gun and started shooting. That the victim was shot in the back of the head and that the defendant continued shooting even after his victim had fallen was corroborated by medical evidence. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).
We also find that the trial court properly exercised its discretion pursuant to CPL 270.50 in permitting the jury to view the crime scene. Although certain scaffolding had been removed since the time of the incident, there was identical scaffolding on the adjoining side of the same building from which, along with the exhibits showing the previously existing scaffolding, the jury could easily reconstruct the exact scene ( cf., People v Robinson, 133 A.D.2d 473). Moreover, the court properly determined that a viewing would be helpful to the jury in assisting it to determine what the eyewitnesses to the crime saw and heard.
The sentence imposed was not excessive ( see, People v. Suitte, 90 A.D.2d 80). Bracken, J.P., Balletta, Pizzuto and Krausman, JJ., concur.