Opinion
02-10-2016
The PEOPLE, etc., respondent, v. Darren PRINCE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, Daniel Berman, and Bernarda Villalona of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, Daniel Berman, and Bernarda Villalona of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 19, 2013, convicting him of manslaughter 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.
The Supreme Court properly denied the defendant's request to charge the jury on criminally negligent homicide as a lesser-included offense of murder in the second degree. There is no reasonable view of the evidence, viewed in the light most favorable to the defendant (see People v. Rivera, 23 N.Y.3d 112, 120–121, 989 N.Y.S.2d 446, 12 N.E.3d 444 ; People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 ), which would support a finding that the defendant acted with criminal negligence (see People v. Hill, 266 A.D.2d 473, 474, 698 N.Y.S.2d 888 ; People v. Stephens, 198 A.D.2d 245, 245–246, 603 N.Y.S.2d 514, affd. 84 N.Y.2d 990, 622 N.Y.S.2d 502, 646 N.E.2d 804 ; People v. Duncan, 55 A.D.2d 690, 690, 389 N.Y.S.2d 41 ).
The defendant's contention that the trial court erred in denying his request for a missing witness charge is partially unpreserved for appellate review, since some of the specific arguments he now makes were not raised before the Supreme Court (see CPL 470.05[2] ; People v. Spinelli, 79 A.D.3d 1152, 1152, 913 N.Y.S.2d 582 ; People v. Lopez, 19 A.D.3d 510, 511, 798 N.Y.S.2d 473 ). In any event, the contention is without merit, as the defendant failed to meet his burden of demonstrating that the witnesses were under the People's control (see People v. Savinon, 100 N.Y.2d 192, 200, 761 N.Y.S.2d 144, 791 N.E.2d 401 ; People v. Roseboro, 127 A.D.3d 998, 999, 6 N.Y.S.3d 629 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., HALL, ROMAN and DUFFY, JJ., concur.