PEOPLE v. GUTIERREZ (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (William J. Condon, J.), rendered September 7, 2016, convicting him of murder in the second degree (two counts), robbery in the first degree, and attempted grand larceny in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On November 28, 2014, in a parking lot in Bay Shore, while attempting to steal a sport utility vehicle, the defendant drove the vehicle into its owner, killing him.  A short time earlier in the same parking lot, the defendant had attempted to steal a different vehicle owned by someone else.  The defendant testified that he had been drinking and did not remember the incidents or being in the parking lot at the time the incidents occurred.  The defendant was convicted of two counts of murder in the second degree, robbery in the first degree, and attempted grand larceny in the third degree, upon a jury verdict, and was sentenced to 25 years to life imprisonment on each count of murder in the second degree, 25 years imprisonment plus 5 years of postrelease supervision on the count of robbery in the first degree, and 2 to 4 years imprisonment on the count of attempted grand larceny in the third degree, the sentences to run concurrently.

The defendant's contentions regarding the legal sufficiency of the evidence are unpreserved for appellate review (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), and in any event, are without merit (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1).  In conducting an independent review of the weight of the evidence with regard to the defendant's convictions (see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we find 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 defendant's contention that the County Court failed to properly charge the jury on attempted grand larceny in the third degree is unpreserved for appellate review (see CPL 470.05[2]; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and we decline to reach it in the exercise of our interest of justice jurisdiction.

We agree with the defendant that the County Court should not have permitted testimony from the victim's wife and from a police detective which had no bearing on the materiality of the issues before the jury and which was calculated to appeal to the passion and sympathy of the jury (see People v. Harris, 98 N.Y.2d 452, 490–491, 749 N.Y.S.2d 766, 779 N.E.2d 705; People v. Miller, 6 N.Y.2d 152, 188 N.Y.S.2d 534, 160 N.E.2d 74; People v. Caruso, 246 N.Y. 437, 159 N.E. 390; People v. Holiday, 142 A.D.3d 625, 626, 36 N.Y.S.3d 520).  However, the error was harmless beyond a reasonable doubt (see People v. Harris, 98 N.Y.2d at 490–491, 749 N.Y.S.2d 766, 779 N.E.2d 705; 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).

SCHEINKMAN, P.J., LASALLE, BRATHWAITE NELSON and IANNACCI, JJ., concur.