Opinion
2014-06459, Ind. No. 1519-13.
04-20-2016
The PEOPLE, etc., respondent, v. Juan GOMEZ, also known as Titanic, appellant.
Robert C. Mitchell, Riverhead, NY (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Rosalind C. Gray of counsel), for respondent.
Robert C. Mitchell, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Rosalind C. Gray of counsel), for respondent.
RANDALL T. ENG, P.J., WILLIAM F. MASTRO, JOHN M. LEVENTHAL, and ROBERT J. MILLER, JJ.
Opinion Appeal by the defendant from a judgment of the County Court, Suffolk County (Ambro, J.), rendered June 13, 2014, convicting him of murder in the second degree and conspiracy in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Guzman, 134 A.D.3d 852, 853, 20 N.Y.S.3d 612 ; People v. Mazyck, 118 A.D.3d 728, 728, 987 N.Y.S.2d 95 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Contrary to the defendant's contention, the testimony of the main prosecution witness was not incredible as a matter of law (see People v. McClough, 135 A.D.3d at 880, 20 N.Y.S.3d 612; People v. Davis, 299 A.D.2d 420, 422, 749 N.Y.S.2d 284 ). 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 factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that 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 failed to preserve for appellate review his contention that he was deprived of his right to a fair trial by the prosecutor's alleged violation of the County Court's Molineux ruling (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ; People v. Laverpool, 52 A.D.3d 622, 623, 860 N.Y.S.2d 565 ; People v. Olibencia, 45 A.D.3d 607, 609, 845 N.Y.S.2d 398 ; People v. Ingram, 258 A.D.2d 533, 685 N.Y.S.2d 264 ). In any event, the prosecutor did not violate the court's Molineux ruling (see People v. Rock, 65 A.D.3d 558, 559, 882 N.Y.S.2d 907 ). In addition, the defendant did not object to the Molineux charge as given, and thus his claim that the charge was inadequate is unpreserved for appellate review (see CPL 470.05 [2] ; People v. Dei, 2 A.D.3d 1459, 1460, 769 N.Y.S.2d 772 ), and, in any event, without merit.
The County Court properly denied the defendant's application for a missing witness charge regarding a New York State Police investigator. A party seeking a missing witness charge “must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party” (People v. Macana, 84 N.Y.2d 173, 177, 615 N.Y.S.2d 656, 639 N.E.2d 13 ). Here, the defendant failed to make a prima facie showing that the uncalled witness could be expected to have knowledge about a material issue in the case or that his testimony would be favorable to the People (see People v. Salmon, 291 A.D.2d 512, 512–513, 738 N.Y.S.2d 222 ; People v. Moore, 268 A.D.2d 491, 701 N.Y.S.2d 642 ). The defendant's contentions that the County Court committed reversible error when it referred a witness's accomplice status to the jury for resolution as a question of fact, and that the prosecution failed to present sufficient nonaccomplice testimony to corroborate the witness's testimony, are unpreserved for appellate review (see CPL 470.05[2] ; People v. Argentina, 27 A.D.3d 569, 570, 813 N.Y.S.2d 99 ; People v. Roque, 291 A.D.2d 417, 737 N.Y.S.2d 306 ). In any event, the court properly instructed the jury that the issue of whether the witness was an accomplice was a question of fact, inasmuch as competing inferences regarding his complicity could reasonably have been drawn from the evidence adduced at the trial (see People v. Visich, 57 A.D.3d 804, 806, 870 N.Y.S.2d 376 ).
The defendant failed to preserve for appellate review his contention that he was deprived of his right to a fair trial due to remarks the prosecutor made on summation (see CPL 470.05[2] ). In any event, the challenged remarks either constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v. Patterson, 121 A.D.2d 406, 502 N.Y.S.2d 806 ), were within the broad bounds of rhetorical comment permissible in closing arguments and constituted fair response to arguments made by defense counsel in summation (see People v. Rios, 105 A.D.3d 873, 962 N.Y.S.2d 351 ), or were not so derogatory as to deprive the defendant of a fair trial (see People v. Tavarez, 135 A.D.3d 973, 23 N.Y.S.3d 395 ; People v. Caba, 101 A.D.3d 896, 954 N.Y.S.2d 909 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).