Opinion
2018–12530 Ind. No. 10115/16
06-28-2023
The PEOPLE, etc., respondent, v. Victorino SERRA, appellant.
Patricia Pazner, New York, NY (Melissa S. Horlick of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Jason Eldridge of counsel), for respondent.
Patricia Pazner, New York, NY (Melissa S. Horlick of counsel), for appellant, and appellant
pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Jason Eldridge of counsel), for respondent.
ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (William M. Harrington, J.), rendered September 12, 2018, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of murder in the second degree based upon his conduct of stabbing the victim in the chest and causing his death.
The defendant's contention that the evidence was legally insufficient to establish his intent to kill the victim is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). 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 establish the defendant's guilt beyond a reasonable doubt.
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 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 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the evidence 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 ). The defendant's homicidal intent could be inferred from, among other things, evidence of the nature and location of the stab wound he inflicted upon the victim, as well as the defendant's conduct of following the victim while holding his knife until the victim fell to the ground (see People v. Moore, 118 A.D.3d 916, 917, 988 N.Y.S.2d 80 ; People v. Tigner, 51 A.D.3d 1045, 860 N.Y.S.2d 542 ).
The defendant's contention that the prosecutor improperly appealed to the jury's sympathy by eliciting certain testimony from the victim's stepdaughter and father, and by making certain statements during summation, is partially unpreserved for appellate review (see CPL 470.05[2] ; People v. Hubert, 194 A.D.3d 959, 961, 147 N.Y.S.3d 137 ). In any event, portions of the challenged testimony and summation comments were relevant to the defendant's justification defense, and, contrary to the defendant's contention, any improperly admitted testimony or comments did not cumulatively serve to deprive the defendant of a fair trial (see People v. Hernandez, 166 A.D.3d 647, 649, 88 N.Y.S.3d 51 ; People v. Cherry, 163 A.D.3d 706, 707, 81 N.Y.S.3d 123 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions raised in his pro se supplemental brief are either without merit or do not require reversal.
IANNACCI, J.P., GENOVESI, FORD and WAN, JJ., concur.