- November 27, 2017
Skip Laisure, New York, NY (Tammy E. Linn of counsel), for
appellant, and appellant pro se.
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove
and Morgan J. Dennehy of counsel), for respondent.
E. CHAMBERS, J.P. SHERI S. ROMAN ROBERT J. MILLER COLLEEN D.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Del Giudice, J.), rendered July 22, 2013, convicting
him of manslaughter in the first degree and attempted gang
assault in the first degree, upon a jury verdict, and
sentencing him to consecutive determinate terms of
imprisonment of 25 years plus 5 years of postrelease
supervision on the conviction of manslaughter in the first
degree and 15 years plus 5 years of postrelease supervision
on the conviction of attempted gang assault in the first
that the judgment is modified, as a matter of discretion in
the interest of justice, by providing that the sentences
imposed shall run concurrently with each other; as so
modified, the judgment is affirmed.
defendant's contention that the Supreme Court improperly
permitted a witness to identify him in court is unpreserved
for appellate review (see CPL 470.05; People
v Boone, 84 A.D.3d 1108, 1109). In any event, the
in-court identification was proper, as was the witness's
previous confirmatory identification of the defendant from a
police-arranged photo array (see People v Shepard,
138 A.D.3d 895, 896).
defendant contends that the prosecution was improperly
allowed to elicit testimony from witnesses that bolstered
each other's identifications of the defendant and
testimony from a police officer that bolstered those
witnesses' identification of the defendant (see
People v Trowbridge, 305 NY 471). However, no
objection to the contested testimony was made, and thus, the
issue is not preserved for appellate review (see CPL
470.05; People v West, 56 N.Y.2d 662, 663). In
any event, any error in the admission of the testimony was
harmless, since there was overwhelming evidence of the
defendant's guilt and no significant probability that the
error contributed to his convictions (see People v
Johnson, 57 N.Y.2d 969, 970; People v Crimmins,
36 N.Y.2d 230, 241-242).
defendant's contention that the Supreme Court committed
reversible error in permitting the prosecution to introduce
the grand jury testimony of one of its witnesses as evidence
in its case-in-chief because the witness's trial
testimony did not tend to disprove or affirmatively damage
its case is also unpreserved for appellate review (see CPL
470.05). The defendant also contends that the court's
questioning of that witness was improper because it evinced
the court's disbelief of his testimony (see People v
Mendes, 3 N.Y.2d 120, 121-122). However, any error that
may have been occasioned by the admission of the impeachment
evidence, the court's improper questioning or the
court's failure to immediately provide the jury with a
limiting instruction regarding the proper evaluation of the
impeachment evidence was harmless, as there was overwhelming
evidence of the defendant's guilt and no significant
probability that the errors contributed to his convictions
(see People v Saez, 69 N.Y.2d 802, 804; People v
Crimmins, 36 N.Y.2d at 241-242; cf. People v
Mendes, 3 N.Y.3d at 122).
failure of defense counsel to object to the introduction of
the witness's grand jury testimony did not constitute
ineffective assistance of counsel. Indeed, a single error by
defense counsel will not be deemed to have deprived a
defendant of the effective assistance of counsel, unless that
error is "sufficiently egregious and prejudicial as to
compromise a defendant's right to a fair trial"
(People v Caban, 5 N.Y.3d 143, 152; see People v
Turner, 5 N.Y.3d 476, 480). Moreover, the record as a
whole establishes that defense counsel competently
represented the defendant and provided him with meaningful
representation (see People v Baldi, 54
N.Y.2d 137, 147).
defendant's contention, raised in his pro se supplemental
brief, that the Supreme Court erred by charging manslaughter
in the first degree as a lesser-included offense of murder in
the second degree is unpreserved for appellate review (see
CPL 470.05). In any event, a reasonable view of the
evidence supports a finding that the defendant committed the
lesser offense of manslaughter in the first degree rather
than the greater one of murder in the second degree. As such,
the question of the defendant's intent was properly left
for the jury (see People v Butler, 57 N.Y.2d 664;
People v Albert, 213 A.D.2d 414, 414-415). The
sentence imposed was excessive to the extent indicated herein
(see People v Suitte, 90 A.D.2d 80).
defendant's remaining contention raised in his pro se
supplemental brief is unpreserved for appellate ...