Opinion
2014-12-3
The PEOPLE, etc., respondent, v. Santo RIVERA, appellant.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, Lauren Schorr, and Melissa King of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, Lauren Schorr, and Melissa King of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 22, 2011, as amended December 15, 2011, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Bochi, 119 A.D.3d 811, 989 N.Y.S.2d 301; People v. King, 110 A.D.3d 1100, 973 N.Y.S.2d 923). In any event, 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 disprove the defendant's justification defense beyond a reasonable doubt. Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the jury's rejection of the justification defense 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).
In view of the minimal evidence of the defendant's intoxication, the decision of his trial counsel not to request a jury charge on intoxication, and to rely strictly on the justification defense, appears to have been a reasonable trial tactic. Thus, contrary to the defendant's assertion, he was not deprived of the effective assistance of counsel ( see People v. Lydon, 134 A.D.2d 287, 520 N.Y.S.2d 456; People v. Barrentine, 112 A.D.2d 440, 492 N.Y.S.2d 100; see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).