PEOPLE v. HUDYIH

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

The PEOPLE, etc., respondent, v. Rashad HUDYIH, appellant.

Decided: March 31, 2009

ROBERT A. SPOLZINO, J.P., MARK C. DILLON, ANITA R. FLORIO, and DANIEL D. ANGIOLILLO, JJ. Douglas J. Martino, Mount Vernon, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered August 1, 2006, convicting him of attempted murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Where a defendant charged with an attempted homicide relies on a defense of justification, evidence of a victim's prior acts of violence, of which the defendant had knowledge, are admissible provided that the acts were reasonably related to the crime with which the defendant was charged (see People v. Reynoso, 73 N.Y.2d 816, 818, 537 N.Y.S.2d 113, 534 N.E.2d 30;  People v. Miller, 39 N.Y.2d 543, 552, 384 N.Y.S.2d 741, 349 N.E.2d 841;  People v. Washington, 44 A.D.3d 973, 973-974, 843 N.Y.S.2d 686).   Here, the trial court providently exercised its discretion in limiting admission of the evidence of the victim's prior acts of violence.   Moreover, the excluded evidence would have been merely cumulative (see People v. Washington, 44 A.D.3d at 974, 843 N.Y.S.2d 686).

 The defendant's challenge to the legal sufficiency of the evidence regarding his defense of justification 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;  see also People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Giammarino, 105 A.D.2d 802, 481 N.Y.S.2d 435).   Further, 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 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 he was penalized for going to trial rather than accepting a plea offer is also unpreserved for appellate review (see People v. Evans, 16 A.D.3d 595, 596, 792 N.Y.S.2d 124) and, in any event, is without merit.   The sentencing minutes indicate that the court relied upon the appropriate factors in sentencing the defendant to a higher sentence than that which was offered during plea negotiations (see People v. Pena, 50 N.Y.2d 400, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;  People v. Evans, 16 A.D.3d at 596, 792 N.Y.S.2d 124).   The fact that the defendant's sentence was greater than the one he would have received had he pleaded guilty does not establish his entitlement to a lesser sentence (see People v. Evans, 16 A.D.3d at 596, 792 N.Y.S.2d 124;  People v. Hinton, 285 A.D.2d 476, 728 N.Y.S.2d 177).

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

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