PEOPLE v. CABRERA

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Davon CABRERA, appellant.

Decided: June 30, 2009

A. GAIL PRUDENTI, P.J., STEVEN W. FISHER, HOWARD MILLER, and PLUMMER E. LOTT, JJ. Alan Katz, Garden City, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Margaret E. Mainusch and Michael E. Soffer of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered February 15, 2008, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish his guilt of murder in the second degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Sepulveda, 52 A.D.3d 539, 859 N.Y.S.2d 475).   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 murder in the second degree beyond a reasonable doubt (see People v. Page, 225 A.D.2d 831, 832, 638 N.Y.S.2d 985).

 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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  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 charge 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, the Supreme Court did not err in admitting into evidence certain statements made by the defendant to detectives which were not included as part of the notice provided by the prosecution.   The statements were made in the same conversation as the statements of which the prosecution gave notice to the defendant, and were entirely consistent with those statements (see CPL 710.30;  People v. Garcia, 290 A.D.2d 299, 300, 735 N.Y.S.2d 545;  People v. Coleman, 256 A.D.2d 473, 474, 682 N.Y.S.2d 402;  People v. Morris, 248 A.D.2d 169, 170, 670 N.Y.S.2d 828, affd. 93 N.Y.2d 908, 690 N.Y.S.2d 510, 712 N.E.2d 676).

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

The defendant's remaining contention is without merit.

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