PEOPLE v. KERSHAW (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered April 19, 1995, 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, and an amended sentence of the same court, imposed June 26, 1995.

ORDERED that the judgment and the amended sentence are affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

We agree with the defendant that the court erred in admitting into evidence a photograph of the victim taken when he was alive, as it was not relevant to a material fact to be proved at trial (see, People v. Stevens, 76 N.Y.2d 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278;  People v. Daughtry, 202 A.D.2d 686, 610 N.Y.S.2d 54).   However, the error was harmless in light of the overwhelming evidence of the defendant's guilt (see, People v. Stevens, supra;  People v. Daughtry, supra;  see also, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The sentence imposed upon the defendant's conviction of criminal possession of a weapon in the second degree and the amended sentence imposed upon his conviction of manslaughter in the first degree were neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.