People v. Green

204 N.Y.S.3d 222

223 A.D.3d 914

The PEOPLE, etc., respondent,

v.David GREEN, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 5, 2023

January 31, 2024

Patricia Pazner, New York, NY (Sean H. Murray and White & Case LLP [Isaac Glassman, Adam Drake, and Anna Williams], of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Daniel Berman of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, LARA J. GENOVESI, LAURENCE L. LOVE, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent Del Giudice, J.), rendered July 29, 2019, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second 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 disprove his temporary and lawful possession defense to the charge of criminal possession of a weapon in the second 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). 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 disprove this defense, as well as to establish the defendant’s guilt of that crime, beyond a reasonable doubt. Additionally, viewing the evidence in the light most favorable to the prosecution (see id. at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to disprove the defendant’s justification defense to the charge of manslaughter in the first degree, as well as to establish the defendant’s guilt of that crime, 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, 349, 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 record here, we are satisfied that the jury’s rejection of the defendant’s temporary and lawful possession and justification defenses and the verdict of guilt were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant failed to preserve for appellate review his contentions regarding several remarks made by the prosecutor during summation, as the defendant failed to object to those remarks (see CPL 470.05[2]; People v. Zephir, 212 A.D.3d 738, 181 N.Y.S.3d 343). In any event, the remarks the defendant now challenges either constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom, or were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Cortez, 181 A.D.3d 820, 821, 122 N.Y.S.3d 115; ...