Opinion
568
March 20, 2003.
Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered July 14, 1999, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon, and sentencing him to concurrent terms of 12½ to 25 years and 3½ to 7 years, respectively, unanimously affirmed.
Deborah L. Morse, for respondent.
Karen M. Kalikow, for defendant-appellant.
Before: Nardelli, J.P., Tom, Andrias, Saxe, Williams, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The totality of the evidence warrants the conclusion that defendant acted in concert with the codefendant in causing the death of the victim (see Penal Law § 20.00; People v. Allah, 71 N.Y.2d 830, 832; People v. Rosario, 293 A.D.2d 298), a theory upon which the jury was suitably instructed. The fact that defendant and the codefendant were convicted of different degrees of homicide does not undermine the inference of accessorial liability (see People v. Rayam, 94 N.Y.2d 557; see also Penal Law § 20.15).
Defendant's claims that the prosecutor's cross-examination improperly commented on defendant's pretrial silence and attempted to shift the burden of proof by implying that defendant was obligated to produce witnesses are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them (see People v. Melendez, 55 N.Y.2d 445; People v. Tankleff, 84 N.Y.2d 992, 994-995). Although the prosecutor's reference to the content of certain prior testimony was improper, this evidence did not cause any prejudice to defendant since it was minimal and unrelated to the central issues of this case.
When considered as a whole, the court's charge provided the jury with adequate guidance in evaluating the credibility of witnesses, and clearly instructed the jury that the burden of proof remained on the People (see People v. Fields, 87 N.Y.2d 821).
We have considered and rejected defendant's other contentions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.