W. L. Fahey, New York, NY (Benjamin S. Litman of counsel),
for appellant, and appellant pro se.
Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard
Joblove, Lori Glachman, and Daniel Berman of counsel), for
C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX.
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Del Giudice, J.), rendered August 22, 2013,
convicting him of manslaughter in the first degree, upon a
jury verdict, and imposing sentence.
that the judgment is affirmed.
defendant was convicted of acting in concert with an
unidentified accomplice in connection with the assault and
fatal shooting of his daughter's stepfather. The
defendant contends that the evidence was legally
insufficient, and that the verdict was against the weight of
the evidence, with respect to the element of his intent to
seriously injure the decedent as required for his conviction
of manslaughter in the first degree (see Penal Law
§ 125.20). Contrary to the People's contention,
the defendant's legal sufficiency claim is preserved for
appellate review (see People v Hawkins, 11 N.Y.3d
484, 492). Viewing the evidence adduced at trial in the light
most favorable to the prosecution (see People v
Contes, 60 N.Y.2d 620), the evidence was legally
sufficient to prove the defendant's guilt beyond a
reasonable doubt (see People v Danielson, 9 N.Y.3d
342, 349). The jury could rationally infer from the evidence
that the defendant and his accomplice shared "a
community of purpose" (People v Scott, 25
N.Y.3d 1107, 1110; see People v Martinez, 30 A.D.3d
353; People v Witherspoon, 300 A.D.2d 605;
People v Mejia, 297 A.D.2d 755, 756; People v
Santana, 191 A.D.2d 174).
in fulfilling our responsibility to conduct an independent
review of the weight of the evidence (see CPL
470.15; People v Danielson, 9 N.Y.3d 342) 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;
People v Bleakley, 69 N.Y.2d 490). 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; People v Rizzo, 142
A.D.3d 1187). The defendant's actions and participation
in the assault on the victim, as well as the undisputed
evidence that it was the defendant who had the motive for the
attack, demonstrated that the defendant shared the intent to
cause serious physical injury to the victim, and that he was
culpable for causing the victim's death, whether it was
the defendant, or his accomplice, who fired the fatal shot.
sentence imposed was not excessive (see People v
Suitte, 90 A.D.2d 80). The defendant's contention
that the sentence imposed was improperly based on the crime
of which he was acquitted is unpreserved for appellate
review, as the defendant did not raise this issue at the time
of sentencing (see CPL 470.05; People v
Wingate, 142 A.D.3d 630; People v Malcolm, 131
A.D.3d 1068). In any event, the contention is without merit
(see People v Hall, 46 N.Y.2d 873, 875; People v
Guerrero, 129 A.D.3d 1102, 1103; People v
Morgan, 27 A.D.3d 579, 580; People v Robinson,
250 A.D.2d 629). The defendant's contention that the
sentence imposed improperly penalized him for exercising his
right to a trial is unpreserved for appellate review and, in
any event, without merit (see CPL 470.05;
People v Hurley, 75 N.Y.2d 887, 888).
contentions raised in the defendant's pro se supplemental
brief are unpreserved for appellate review, and, in any
event, are ...