PEOPLE v. WALKER (2010)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered February 10, 2009, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the People failed to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Battle, 73 A.D.3d 939, 899 N.Y.S.2d 878;  People v. Carranza, 306 A.D.2d 351, 760 N.Y.S.2d 667, affd. 3 N.Y.3d 729, 786 N.Y.S.2d 381, 819 N.E.2d 997).   In any event, the evidence, when viewed 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), was sufficient to disprove the justification defense and establish the defendant's guilt of murder in the second degree beyond a reasonable doubt.   Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the jury's rejection of the justification defense 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 evidence established that the defendant first shot the victim in the back, causing him to fall from a bicycle, and that the defendant then approached the victim, who was lying injured in the middle of the street, and shot him in the chest (see People v. Battle, 73 A.D.3d at 939, 899 N.Y.S.2d 878;  People v. Bianco, 51 A.D.3d 940, 941, 860 N.Y.S.2d 121;  People v. Rishton, 303 A.D.2d 692, 756 N.Y.S.2d 779;  People v. Holmes, 242 A.D.2d 278, 661 N.Y.S.2d 650).

The defendant's contention that he was deprived of a fair trial because the witness to whom the prosecutor referred in his opening statement did not testify is unpreserved for appellate review (see CPL 470.05[2];  People v. McKnight, 72 A.D.3d 846, 898 N.Y.S.2d 462, lv. granted 15 N.Y.3d 753, 906 N.Y.S.2d 826, 933 N.E.2d 225;  People v. Pierre, 35 A.D.3d 893, 828 N.Y.S.2d 121;  People v. Seabrooks, 244 A.D.2d 514, 664 N.Y.S.2d 105).   In any event, in light of the overwhelming evidence of the defendant's guilt and the lack of a significant probability that the jury would have acquitted him had it not heard the references to this witness, any error was harmless (see People v. Pierre, 35 A.D.3d at 893, 828 N.Y.S.2d 121;  People v. Thompson, 276 A.D.2d 811, 716 N.Y.S.2d 397).

The defendant's claim that his right of confrontation was denied when a witness for the prosecution was permitted, at the witness' insistence, to testify wearing sunglasses and a winter hat is unpreserved for appellate review as the defendant specifically consented to the disguise.   In any event, the Supreme Court properly concluded that the procedure was justified by the necessities of the case and any potential prejudice was alleviated by the court's curative instruction, which was crafted by the defendant (see People v. Smith, 57 A.D.3d 356, 358, 869 N.Y.S.2d 88;  People v. Morales, 246 A.D.2d 302, 303, 666 N.Y.S.2d 410).

The Supreme Court properly permitted the investigating detective to testify as to the contents of a surveillance videotape as, under the circumstances, his testimony served to aid the jury in making an independent evaluation of the videotape evidence (see People v. Russell, 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922;  People v. Ruiz, 7 A.D.3d 737, 777 N.Y.S.2d 193;  People v. Rivera, 259 A.D.2d 316, 684 N.Y.S.2d 787;  People v. Morgan, 214 A.D.2d 809, 625 N.Y.S.2d 673).   To the extent that any of the contested testimony was unnecessary to accurately describe the facts, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).