Opinion
2022–01408 Ind. No. 328/19
10-11-2023
The PEOPLE, etc., respondent, v. Anthony HOBSON, appellant.
Rosenberg Law Firm, Brooklyn, NY (Jonathan Rosenberg of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Charles T. Pollak of counsel), for respondent.
Rosenberg Law Firm, Brooklyn, NY (Jonathan Rosenberg of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Charles T. Pollak of counsel), for respondent.
HECTOR D. LASALLE, P.J., FRANCESCA E. CONNOLLY, CHERYL E. CHAMBERS, JANICE A. TAYLOR, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered February 17, 2022, convicting him of murder in the second degree, tampering with physical evidence, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the jury's determination that he failed to prove by a preponderance of the evidence that he was "act[ing] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse" when he stabbed and killed his pregnant girlfriend was not against the weight of the evidence ( Penal Law § 125.25[1][a] ; see Penal Law § 25.00[2] ; People v. Anarbaev, 198 A.D.3d 802, 802, 156 N.Y.S.3d 74 ; People v. Kwas, 96 A.D.3d 877, 877, 946 N.Y.S.2d 258 ; People v. Venezia, 10 A.D.3d 736, 736, 781 N.Y.S.2d 914 ). Considering the evidence presented, the jury reasonably concluded that the circumstances surrounding the commission of the crime were not indicative of a loss of self-control or similar mental infirmity (see People v. Anarbaev, 198 A.D.3d at 802–803, 156 N.Y.S.3d 74 ; People v. Kwas, 96 A.D.3d at 877, 946 N.Y.S.2d 258 ; People v. George, 7 A.D.3d 810, 810, 776 N.Y.S.2d 883 ).
The defendant's contention that his conviction of tampering with physical evidence was based on legally insufficient evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Stone, 185 A.D.3d 967, 968, 125 N.Y.S.3d 867 ), and, in any event, is without merit (see People v. Hafeez, 100 N.Y.2d 253, 260, 762 N.Y.S.2d 572, 792 N.E.2d 1060, abrogated on other grounds by People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 ; People v. Roth, 174 A.D.3d 1530, 1531, 106 N.Y.S.3d 522 ; People v. Bussey, 82 A.D.3d 1002, 1004, 919 N.Y.S.2d 71, affd as mod, 19 N.Y.3d 231, 947 N.Y.S.2d 381, 970 N.E.2d 404 ; cf. People v. Zachary, 179 A.D.3d 722, 725, 117 N.Y.S.3d 287 ). 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 the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilty of tampering with physical evidence 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 ; cf. People v. Tromans, 177 A.D.3d 1103, 1106, 114 N.Y.S.3d 487 ).
The defendant's contention that the Supreme Court deprived him of his constitutional right to present a defense by denying that branch of his motion which was to allow a defense expert to testify remotely is unpreserved for appellate review, as he did not raise that contention at trial (see CPL 470.05[2] ; People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333 ; People v. Jimenez, 148 A.D.3d 1054, 1055, 50 N.Y.S.3d 435 ; People v. Haddock, 79 A.D.3d 1148, 1149, 917 N.Y.S.2d 634 ), and we decline to review it pursuant to our interest of justice jurisdiction.
The defendant's challenge to the Supreme Court's charge on the elements of the offense of criminal possession of a weapon in the fourth degree is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to review it pursuant to our interest of justice jurisdiction ( People v. Grant, 152 A.D.3d 792, 793, 59 N.Y.S.3d 433 ; People v. Belle, 113 A.D.3d 630, 631, 977 N.Y.S.2d 916 ).
The defendant's contention that the Supreme Court's handling of a certain jury note resulted in the commission of a mode of proceeding error requiring reversal (see People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 ) is without merit, as the jury was not requesting further information or instruction within the meaning of CPL 310.30 (see People v. Edwards, 208 A.D.3d 510, 515, 172 N.Y.S.3d 466, citing People v. Morrison, 148 A.D.3d 1707, 1708, 50 N.Y.S.3d 673, affd 32 N.Y.3d 951, 84 N.Y.S.3d 819, 109 N.E.3d 1119 ), and, in any event, defense counsel was "not prevented from objecting or from participating meaningfully" ( People v. Mack, 27 N.Y.3d 534, 542, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ). The defendant's remaining contentions in that regard are not preserved for appellate review and, in any event, are without merit.
The defendant's contention that he was deprived of a fair trial as a result of a certain remark made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2] ), as the defendant made only a general one-word objection and he failed to request additional relief when the Supreme Court sustained his objection (see People v. Adorno, 210 A.D.3d 113, 119–120, 177 N.Y.S.3d 260 ; People v. Rodney, 96 A.D.3d 880, 880, 946 N.Y.S.2d 245 ). Moreover, the defendant's belated motion for a mistrial did not give the court the opportunity to further remedy the alleged error (see People v. Balls, 69 N.Y.2d 641, 642, 511 N.Y.S.2d 586, 503 N.E.2d 1017 ; People v. Adorno, 210 A.D.3d at 122, 177 N.Y.S.3d 260 ; People v. Rodney, 96 A.D.3d at 880, 946 N.Y.S.2d 245 ). In any event, although the remark would have been better left unsaid, it was not so egregious as to have deprived the defendant of a fair trial (see People v. Reid, 212 A.D.3d 845, 846, 182 N.Y.S.3d 228 ; People v. Holiday, 207 A.D.3d 658, 660, 172 N.Y.S.3d 95 ). The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
LASALLE, P.J., CONNOLLY, CHAMBERS and TAYLOR, JJ., concur.