- December 7, 2017
Skip Laisure, New York, NY (Nao Terai of counsel), for
appellant, and appellant pro se.
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove
and Howard B. Goodman of counsel), for respondent.
REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN FRANCESCA E.
CONNOLLY ANGELA G. IANNACCI, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Neil Jon Firetog, J.), rendered August 20, 2014,
convicting him of murder in the second degree and criminal
possession of a weapon in the second degree, upon a jury
verdict, and imposing sentence.
that the judgment is affirmed.
defendant failed to preserve for appellate review his
contention that the People failed to disprove the defense of
justification (see CPL470.05; People v Simpson,
151 A.D.3d 762, 762). In any event, the evidence, when viewed
in the light most favorable to the prosecution, was legally
sufficient to disprove the defendant's justification
defense beyond a reasonable doubt (see People v
Martinez-Ramos, 135 A.D.3d 965, 965-966; People v
Candelaria, 206 A.D.2d 385, 385-386; People v
Fousse, 167 A.D.2d 416). The People also adduced legally
sufficient evidence that the defendant intended to cause the
death of an other person (see People v Moore, 118
A.D.3d 916, 917; People v Townsend, 83 A.D.3d 969,
970; People v Smith, 35 A.D.3d 635; People v
Jones, 309 A.D.2d 819, 820). Moreover, upon our
independent review of the evidence pursuant to CPL 470.15(5),
we are satisfied that the verdict of guilt on the count of
murder in the second degree was not against the weight of the
evidence (see People v Romero, 7 N.Y.3d 633).
defendant contends that the Supreme Court deprived him of a
fair trial by failing to provide the jury with a complete
charge on the defense of justification because the charge as
given did not include language advising the jury how to
assess the victim's reputation, prior convictions, and
his threats against the defendant. This contention is
unpreserved for appellate review, since the defendant failed
to request that the charge include such additional language
or object to the charge as given (see CPL 470.05;
People v Stewart, 71 A.D.3d 797, 798; People v
Soto, 31 A.D.3d 793, 793). In any event, the contention
is without merit, since the court fairly and accurately
described the applicable law (see People v Brunson,
1 A.D.3d 375; People v Muhammed, 303 A.D.2d 424,
defendant also contends that the Supreme Court erred in
refusing to submit the charge of manslaughter in the second
degree to the jury as a lesser included offense of murder in
the second degree. However, that challenge is foreclosed,
since the lesser-included offense of manslaughter in the
first degree was submitted to the jury and the jury
implicitly rejected that lesser-included offense, as
evidenced by its verdict convicting the defendant of the
highest count of the indictment, murder in the second degree
(see People v Boettcher, 69 N.Y.2d 174, 180;
People v Richette, 33 N.Y.2d42, 45-46;People v
Hira, 100 A.D.3d 922, 923; People v Beriguete,
51 A.D.3d 939, 939-940; People v Powers, 231 A.D.2d
744, 744; People v Vega, 155 A.D.2d 632, 633;
see also People v McGeachy, 74 A.D.3d 989, 989).
defendant's contentions, raised in his pro se
supplemental brief, regarding the admission into evidence of
People's exhibit 49 and whether the jury was timely sworn
in accordance with CPL 270.05, are unpreserved for appellate
review and, in any event, without merit. Moreover, contrary
to the defendant's contention, he was not deprived of the
effective assistance of trial counsel (see People v
Flowers, 28 N.Y.3d 536, 541).
sentence imposed was not excessive (see People v