Opinion
2001-01737
Submitted February 25, 2003.
March 24, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered February 20, 2001, convicting him of manslaughter in the second degree (two counts), upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Andrew Sepielli on the brief), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the People failed to disprove his justification defense by legally sufficient evidence is unpreserved for appellate review (see People v. Clinton, 268 A.D.2d 531), and, in any event, without merit. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to disprove his justification defense beyond a reasonable doubt. The evidence established that the male victim was unarmed and in a defensive position when he was shot repeatedly by the defendant, including once from behind as that victim was lying on the floor (see People v. Holmes, 242 A.D.2d 278; People v. Tineo, 144 A.D.2d 507, 508). In addition, the evidence was legally sufficient to establish that the knife recovered in the kitchen of the apartment where the incident occurred was not in the female victim's possession at the time the defendant repeatedly shot her (see People v. Sanchez, 153 A.D.2d 649, 650).
Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Garafolo, 44 A.D.2d 86). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
SANTUCCI, J.P., SMITH, LUCIANO and COZIER, JJ., concur.