PEOPLE v. KIARIE (2021)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Robert A. Neary, J.), rendered December 2, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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, beyond a reasonable doubt, the defendant's guilt of murder in the second degree (see People v. Rahman, 202 A.D.2d 696, 609 N.Y.S.2d 290).  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 the count of murder in the second degree 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 defendant's contention, he failed to meet his burden of proving the affirmative defense of mental disease or defect by a preponderance of the evidence (see Penal Law §§ 25.00[2];  40.15;  People v. Trojan, 73 A.D.3d 818, 819, 900 N.Y.S.2d 405;  cf.  People v. Hernandez–Beltre, 157 A.D.3d 814, 816, 69 N.Y.S.3d 336).

The defendant's contention that he was deprived of a fair trial by alleged prosecutorial misconduct during the prosecutor's summation is unpreserved for appellate review (see CPL 470.05[2]).  The defendant either failed to object to the remarks at issue, failed to request curative instructions or additional relief when the Supreme Court instructed the prosecutor not to make certain remarks, or failed to timely move for a mistrial (see People v. Gonzalez, 183 A.D.3d 663, 121 N.Y.S.3d 625).  In any event, the defendant's contention is without merit, as the remarks at issue were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to the defense summation, or not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Molina, 188 A.D.3d 920, 922, 133 N.Y.S.3d 618;  People v. Lindsey, 172 A.D.3d 1233, 1234, 98 N.Y.S.3d 882).

The defendant's contention that the Supreme Court's charge on his affirmative defense of mental disease or defect was erroneous is unpreserved for appellate review (see CPL 470.05[2];  People v. Laufer, 187 A.D.3d 1052, 1054, 133 N.Y.S.3d 592).  In any event, the charge was not erroneous as given (see People v. Kohl, 72 N.Y.2d 191, 199, 532 N.Y.S.2d 45, 527 N.E.2d 1182;  People v. Laufer, 187 A.D.3d at 1054, 133 N.Y.S.3d 592;  People v. Gaston, 221 A.D.2d 464, 633 N.Y.S.2d 561).

The defendant's claim that he was deprived of the effective assistance of counsel cannot be resolved without reference to matter outside the record.  Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's ineffective assistance of counsel claim, and we decline to review the claim on this direct appeal (see People v. Lopez–Mendoza, 33 N.Y.3d 565, 573, 106 N.Y.S.3d 266, 130 N.E.3d 862;  People v. Lopez–Alvarado, 194 A.D.3d 961, 962, 144 N.Y.S.3d 380).

DILLON, J.P., IANNACCI, CHRISTOPHER and WOOTEN, JJ., concur.