Opinion
2012-00486
12-31-2014
The PEOPLE, etc., respondent, v. Nicholas SMITH, appellant.
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Joyce Adolfsen of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Joyce Adolfsen of counsel), for respondent.
L. PRISCILLA HALL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered January 4, 2012, 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 support his conviction of manslaughter in the first degree 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 ; People v. Hewitt, 82 A.D.3d 1119, 1121, 919 N.Y.S.2d 204 ; People v. Warren, 50 A.D.3d 706, 854 N.Y.S.2d 742 ). 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 ), contrary to the defendant's contentions, we find that it was legally sufficient to establish the defendant's identity as one of the two gunmen who shot the victim (see People v. Herb, 110 A.D.3d 829, 972 N.Y.S.2d 668 ; People v. Mitchell, 120 A.D.3d 1265, 992 N.Y.S.2d 112 ). 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 ; People v. Mitchell, 120 A.D.3d 1265, 992 N.Y.S.2d 112 ), 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 ; People v. Mitchell, 120 A.D.3d at 1266, 992 N.Y.S.2d 112 ). 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 ).
The defendant's contentions that the Supreme Court's evidentiary rulings, as well as its refusal to continue to wait for the appearance of one of the defense witnesses, deprived him of his constitutional rights to a fair trial, to present a defense, and to confront the witnesses against him, are unpreserved for appellate review and, in any event, are without merit.
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).