Opinion
No. 2008-01818.
April 6, 2010.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered February 19, 2008, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Andrew E. Abraham of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Davis Polk Wardwell, LLP [Ciaran P. A. Connelly], of counsel), for respondent.
Before: Skelos, J.P., Santucci, Angiolillo and Chambers, JJ., concur.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his untimely request for a missing witness charge with respect to a 911 emergency caller, based on its finding that the unidentified caller was not available to the People to testify at trial ( see People v Gonzalez, 68 NY2d 424, 428-429; People v Perry, 218 AD2d 818, 819; cf. People v Gladden, 180 AD2d 747, 748).
The defendant's contention that the People did not disprove his justification defense by legally sufficient evidence is unpreserved for appellate review ( see CPL 470.05; People v Hawkins, 11 NY3d 484, 492-493; People v Boyle, 289 AD2d 251, 252). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt ( see Penal Law § 35.15 [a]; People v Lemaire, 187 AD2d 532, 533; People v Henegan, 150 AD2d 606, 607; People v Troche, 147 AD2d 513, 514; People v Rosado, 123 AD2d 649; see also People v Lee, 185 AD2d 824). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15; People v Danielson, 9 NY3d 342), 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 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). 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 NY3d 633).
The defendant's remaining contention does not require reversal.