Opinion
03-16-2016
The PEOPLE, etc., respondent, v. Charles CREEKMUR, appellant.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Jacqueline Rosenblum of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Jacqueline Rosenblum of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered September 17, 2014, convicting him of manslaughter in the first degree, 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, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt (see generally People v. Suphal, 7 A.D.3d 547, 776 N.Y.S.2d 101 ; People v. Velez, 1 A.D.3d 290, 767 N.Y.S.2d 592 ; People v. Centeno, 291 A.D.2d 265, 737 N.Y.S.2d 281 ; People v. Torres, 182 A.D.2d 788, 582 N.Y.S.2d 782 ; People v. Varela, 164 A.D.2d 924, 559 N.Y.S.2d 756 ; People v. Rosado, 123 A.D.2d 649, 506 N.Y.S.2d 913 ). 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 testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). 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 argument that certain questions posed by the prosecutor during the direct examination of one of the People's witnesses and during the cross-examination of the defendant were improper is partially unpreserved for appellate review (see CPL 470.05[2] ; People v. Aguilar, 79 A.D.3d 899, 912 N.Y.S.2d 676 ; People v. Wright, 62 A.D.3d 916, 878 N.Y.S.2d 788 ). In any event, to the extent that the prosecutor's questions were improper, the prosecutor's misconduct was "not so flagrant or pervasive as to deny the defendant a fair trial" (People v. Wright, 62 A.D.3d at 917, 878 N.Y.S.2d 788 [internal quotation marks omitted]; see People v. Credle, 124 A.D.3d 792, 998 N.Y.S.2d 466 ; People v. Aguilar, 79 A.D.3d 899, 912 N.Y.S.2d 676 ).
Similarly, the defendant's contentions that the Supreme Court improperly failed to conduct a hearing to determine the amount of restitution, and improperly failed to consider the defendant's ability to pay restitution, are unpreserved for appellate review (see CPL 470.05[2] ; People v. Winslow, 100 A.D.3d 1031, 954 N.Y.S.2d 625 ; People v. Isaacs, 71 A.D.3d 1161, 898 N.Y.S.2d 226 ; People v. Golgoski, 40 A.D.3d 1138, 834 N.Y.S.2d 580 ), and, in any event, without merit (see People v. Baxter, 102 A.D.3d 805, 961 N.Y.S.2d 194 ; People v. Harris, 72 A.D.3d 1110, 900 N.Y.S.2d 137 ; People v. Baez, 52 A.D.3d 840, 859 N.Y.S.2d 375 ; People v. Madrid, 52 A.D.3d 532, 859 N.Y.S.2d 715 ).