Opinion
2017–05615 Ind. No. 4773/15
10-05-2022
The PEOPLE, etc., respondent, v. Kyle RENEAU, appellant.
Patricia Pazner, New York, NY (Brandon Kronstat of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Amy M. Appelbaum, and Jason Eldridge of counsel), for respondent.
Patricia Pazner, New York, NY (Brandon Kronstat of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Amy M. Appelbaum, and Jason Eldridge of counsel), for respondent.
BETSY BARROS, J.P., ROBERT J. MILLER, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered April 24, 2017, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 23 years, to be followed by a period of postrelease supervision of 5 years, on the conviction of manslaughter in the first degree, and a determinate term of imprisonment of 15 years, to be followed by a period of postrelease supervision of 5 years, on the conviction of criminal possession of a weapon in the second degree, with the sentences to run concurrently.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of manslaughter in the first degree from a determinate term of imprisonment of 23 years, to be followed by a period of postrelease supervision of 5 years, to a determinate term of imprisonment of 17 years, to be followed by a period of postrelease supervision of 5 years; as so modified, the judgment is affirmed.
The defendant's contention that the People did not disprove his justification defense is not preserved for appellate review (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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 People v. Akbar, 169 A.D.3d 708, 93 N.Y.S.3d 366 ; People v. Flores, 165 A.D.3d 695, 84 N.Y.S.3d 543 ; People v. Simpson, 151 A.D.3d 762, 56 N.Y.S.3d 253 ). 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 jury's rejection of the defendant's justification defense and 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 contention that he was deprived of a fair trial by certain statements made by the prosecutor during her summation is not preserved for appellate review because he failed to object to the prosecutor's statements (see CPL 470.05[2] ; People v. Morris, 2 A.D.3d 652, 768 N.Y.S.2d 379 ; People v. McHarris, 297 A.D.2d 824, 748 N.Y.S.2d 57 ). In any event, while some of the comments would have been better left unsaid, the defendant was not deprived of a fair trial thereby, and any error in this regard was harmless in light of the overwhelming evidence of the defendant's guilt and the fact that there was no significant probability that the comments might have contributed to the defendant's convictions (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Holiday, 207 A.D.3d 658, 659, 172 N.Y.S.3d 95 ; People v. Totesau, 112 A.D.3d 977, 978, 977 N.Y.S.2d 364 ).
The defendant's contention that the Supreme Court committed reversible error in permitting the jurors to take notes during a requested readback of a portion of the jury charge without providing a cautionary instruction is unpreserved for appellate review because the defendant neither objected to the court giving the jurors permission to take notes during the requested readback nor requested that the court give a cautionary instruction (see CPL 470.05[2] ; People v. Wellington, 84 A.D.3d 984, 985, 923 N.Y.S.2d 581 ; People v. Harris, 72 A.D.3d 1110, 900 N.Y.S.2d 137 ; People v. Hudson, 54 A.D.3d 774, 864 N.Y.S.2d 64 ; People v. Ramos, 306 A.D.2d 295, 760 N.Y.S.2d 331 ). Since there is no indication in the record that any jurors actually took notes, we decline to reach the issue in the exercise of our interest of justice jurisdiction (see People v. Wellington, 84 A.D.3d at 985, 923 N.Y.S.2d 581 ; People v. Elias, 163 A.D.2d 230, 558 N.Y.S.2d 64 ).
The sentence imposed on the conviction of manslaughter in the first degree was excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contention is without merit.
BARROS, J.P., MILLER, GENOVESI and VOUTSINAS, JJ., concur.