PEOPLE v. MOGHADDAM (2008)

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered June 20, 2006, convicting him of manslaughter in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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 establish the defendant's guilt of manslaughter in the second degree beyond a reasonable doubt (see People v. Heinsohn, 61 N.Y.2d 855, 473 N.Y.S.2d 968, 462 N.E.2d 145;  People v. Newman, 26 A.D.3d 589, 809 N.Y.S.2d 282;  People v. Hart, 8 A.D.3d 402, 778 N.Y.S.2d 94).   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, 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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  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 verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The trial court erred in allowing the testimony of a physician as to certain statements made to him by the defendant, as such testimony violated the defendant's physician-patient privilege (see CPLR 4504[a];  cf. People v. Bowen, 229 A.D.2d 954, 645 N.Y.S.2d 381).   However, the evidence of the defendant's guilt, without reference to the physician's challenged testimony, was overwhelming, and there is no reasonable probability that the error might have contributed to the defendant's conviction.   Thus, the error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Lacewell, 44 A.D.3d 876, 842 N.Y.S.2d 920;  People v. Bowen, 229 A.D.2d at 954, 645 N.Y.S.2d 381).

The defendant's contention that he was denied his right to a fair trial by the allegedly prejudicial effect of certain evidence indicating that he had smoked marijuana prior to the subject incident is without merit.

 Contrary to the defendant's contention, he was not denied his right to a fair trial by certain remarks made by the court that allegedly demeaned defense counsel in the presence of the jury, “since the court's actions did not ‘cast a pall of suspicion’ over the defendant's case” (People v. Grant, 184 A.D.2d 729, 729, 587 N.Y.S.2d 186, quoting People v. De Jesus, 42 N.Y.2d 519, 524, 399 N.Y.S.2d 196, 369 N.E.2d 752;  cf. People v. Montes, 141 A.D.2d 767, 769, 529 N.Y.S.2d 856).   In any event, the court effectively alleviated any alleged prejudice to the defendant resulting from the remarks by instructing the jury not to infer from its remarks that it holds any personal view against the defendant and by also instructing the jury to disregard any exchanges between the court and counsel, instructions that the jury is presumed to have followed (see People v. Berg, 59 N.Y.2d 294, 300, 464 N.Y.S.2d 703, 451 N.E.2d 450).

To the extent the defendant's claim that he was denied his right to effective assistance of counsel is reviewable on the record before us (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786;  People v. Love, 57 N.Y.2d 998, 1000, 457 N.Y.S.2d 238, 443 N.E.2d 486;  People v. Grove, 272 A.D.2d 480, 708 N.Y.S.2d 329;  People v. Langhorne, 177 A.D.2d 713, 576 N.Y.S.2d 1016), we find that the defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Gillespie, 36 A.D.3d 626, 831 N.Y.S.2d 83).

The defendant's contentions raised in Point Two of his supplemental pro se brief are without merit, his contentions raised in Point One of his supplemental pro se brief are unpreserved for appellate review, and his contentions raised in Point Three of his supplemental pro se brief are not reviewable on this appeal (see People v. Jenkins, 38 A.D.3d 566, 831 N.Y.S.2d 494).