PEOPLE v. ASH (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered August 8, 2012, convicting him of murder in the second degree and robbery in the first degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his conviction of murder in the second degree (Penal Law § 125.25[3] ) is not supported by legally sufficient evidence because the prosecution failed to establish that the victim's death was a reasonably foreseeable result of the defendant's actions.  This contention is 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, without merit.  To establish the defendant's guilt of felony murder in this case, the prosecution was required to prove that, in the course of committing a robbery, the defendant caused the death of the victim, which further required evidence, inter alia, that “ ‘the fatal result was reasonably foreseeable’ ” (People v. Davis, 28 N.Y.3d 294, 300, 44 N.Y.S.3d 358, 66 N.E.3d 1076, quoting People v. Hernandez, 82 N.Y.2d 309, 314, 604 N.Y.S.2d 524, 624 N.E.2d 661).  Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 620–621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it established that the victim suffered a fatal cardiac arrest which was induced by the emotional stress caused by being robbed at gunpoint on the street by the defendant using a handgun and the physical exertion resulting from running from the scene of the robbery.  Further, the evidence was sufficient to permit the trial court to rationally conclude that the victim's fatal cardiac arrest was a reasonably foreseeable consequence of the defendant's conduct (see People v. Davis, 28 N.Y.3d at 302, 44 N.Y.S.3d 358, 66 N.E.3d 1076;  People v. Gobardhan, 150 A.D.3d 882, 56 N.Y.S.3d 118).

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, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder'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 as to murder in the second degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant failed to demonstrate that he was deprived of the effective assistance of counsel under either the federal or state constitutional standards (see U.S. Const. Amend. VI;  NY Const, art I, § 6;  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  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).

The defendant's remaining contention is without merit.

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