PEOPLE v. GIDDENS (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered May 13, 2015, convicting him of murder in the second degree, manslaughter in the first degree, burglary in the first degree, criminal possession of a weapon in the second degree, criminal possession of stolen property in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the evidence was legally insufficient to support his convictions of murder in the second degree, manslaughter in the first degree, and burglary in the first degree, and that the verdict of guilt on those counts was against the weight of the evidence.  The defendant's challenge to the legal sufficiency of the evidence supporting those convictions is unpreserved for appellate review, since he failed to move for a trial order of dismissal specifically directed at the errors he now claims (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;  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).  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 establish the defendant's guilt of those crimes 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, 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 verdict of guilt on these counts 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).

Contrary to the People's contention, the defendant's contention that the Supreme Court erred in refusing to charge the jury on the defense of justification is preserved for appellate review.  However, we agree with the court's determination since, viewing the record in the light most favorable to the defendant, no reasonable view of the evidence supported such a charge (see People v. Watts, 57 N.Y.2d 299, 301–302, 456 N.Y.S.2d 677, 442 N.E.2d 1188;  People v. Syville, 130 A.D.3d 658, 10 N.Y.S.3d 891;  People v. Baranov, 121 A.D.3d 706, 707, 993 N.Y.S.2d 337;  People v. Fowler, 101 A.D.3d 898, 899, 954 N.Y.S.2d 919;  People v. Cotsifas, 100 A.D.3d 1015, 954 N.Y.S.2d 219;  People v. Small, 80 A.D.3d 786, 786–787, 915 N.Y.S.2d 501).

The defendant's contention that he was deprived of his right to a fair trial due to improper remarks made by the prosecutor during his opening statement and summation is largely unpreserved for appellate review (see CPL 470.05[2];  People v. Dien, 77 N.Y.2d 885, 886, 568 N.Y.S.2d 899, 571 N.E.2d 69).  In any event, the defendant's contention is without merit.  The prosecutor's comments were either fair comment on the evidence and the reasonable inferences to be drawn therefrom or responsive to defense counsel's summation, or otherwise did not deprive the defendant of a fair trial (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. King, 144 A.D.3d 1176, 1176–1177, 41 N.Y.S.3d 751;  People v. Nanand, 137 A.D.3d 945, 947–948, 26 N.Y.S.3d 585;  People v. Willis, 122 A.D.3d 950, 997 N.Y.S.2d 472;  People v. Hoke, 111 A.D.3d 959, 960, 976 N.Y.S.2d 137;  People v. McGowan, 111 A.D.3d 850, 851, 975 N.Y.S.2d 147).

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

RIVERA, J.P., HINDS–RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.