PEOPLE v. HOLMES (2007)

Defendant appeals from a judgment convicting him, upon a jury verdict, of manslaughter in the first degree (Penal Law § 125.20[1] ) and criminal possession of a weapon in the second degree (former § 265.03[2] ).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to disprove his justification defense (see People v. Cunningham, 13 A.D.3d 1118, 1120, 786 N.Y.S.2d 677, lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677, 5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265) and, in any event, that contention lacks merit.   The record establishes that defendant shot the victim three times, twice after wrestling the gun away from him during a struggle.   All three gunshots were either debilitating or deadly, and one gunshot was to the back of the victim's head, at close range.   The jury could reasonably have concluded that, after disarming the victim, defendant had the opportunity to retreat safely without using deadly force (see People v. Littlejohn, 307 A.D.2d 976, 762 N.Y.S.2d 921, lv. denied 100 N.Y.2d 622, 767 N.Y.S.2d 405, 799 N.E.2d 628).   Alternatively, the jury could reasonably have concluded that, because defendant shot the victim more than once, his “actions constituted an excessive use of deadly force, and ․ it was the excessive portion of the force which caused the victim's death” (People v. Reeder, 209 A.D.2d 551, 552, 618 N.Y.S.2d 839, lv. denied 85 N.Y.2d 913, 627 N.Y.S.2d 336, 650 N.E.2d 1338).

We reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “ ‘Great deference is to be accorded to the fact-finder's resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony’ ” (People v. Gritzke, 292 A.D.2d 805, 805-806, 738 N.Y.S.2d 643, lv. denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4), and defendant's credibility was a key issue at trial.   By failing to object to Supreme Court's ultimate Sandoval ruling, defendant failed to preserve for our review his challenge to that ruling (see People v. Ponder, 19 A.D.3d 1041, 1043, 796 N.Y.S.2d 472, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161;  People v. O'Connor, 19 A.D.3d 1154, 1155, 795 N.Y.S.2d 917, lv. denied 5 N.Y.3d 831, 804 N.Y.S.2d 46, 837 N.E.2d 745).   In any event, defendant's challenge lacks merit.   The record establishes that the court carefully parsed the list of bad acts and criminal convictions set forth in the People's Sandoval application prior to ruling on the application, and we conclude that the court's ruling does not constitute an abuse of discretion (see People v. Nichols, 302 A.D.2d 953, 755 N.Y.S.2d 545, lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 121, 790 N.E.2d 295;  People v. Meli, 142 A.D.2d 938, 939, 531 N.Y.S.2d 70, lv. denied 72 N.Y.2d 921, 532 N.Y.S.2d 856, 529 N.E.2d 186).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: