Opinion
2012-04-17
The PEOPLE, etc., respondent, v. Ricardo LYONS, appellant.
Easton Thompson Kasperek Shiffrin, LLP, Rochester, N.Y. (Brian Shiffrin and Donald M. Thompson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Roni C. Piplani, and Sharon Y. Brodt of counsel), for respondent.
Easton Thompson Kasperek Shiffrin, LLP, Rochester, N.Y. (Brian Shiffrin and Donald M. Thompson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Roni C. Piplani, and Sharon Y. Brodt of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered December 12, 2006, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court failed to administer the “oath of truthfulness” ( People v. Hoffler, 53 A.D.3d 116, 121, 860 N.Y.S.2d 266) to prospective jurors, as required by CPL 270.15(1)(a), is unpreserved for appellate review ( see People v. Cobb, 77 A.D.3d 673, 673, 908 N.Y.S.2d 448; People v. Schrock, 73 A.D.3d 1429, 1432, 900 N.Y.S.2d 804). The defendant did not draw the Supreme Court's “attention to the purported error and has failed to present an adequate record in support of his claim” ( People v. Hampton, 64 A.D.3d 872, 877, 883 N.Y.S.2d 338; see People v. Melendez, 205 A.D.2d 392, 393, 613 N.Y.S.2d 395; cf. People v. Hoffler, 53 A.D.3d at 121, 860 N.Y.S.2d 266).
The defendant contends that the evidence was legally insufficient to establish his guilt of murder in the second degree, as the People failed to prove beyond a reasonable doubt that he shared a common intent with the shooter to kill the victim. However, 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 that the defendant, with the intent to cause the victim's death, acted in concert with, and intentionally aided, the shooter ( see Penal Law §§ 20.00, 125.25 [1]; People v. Cancel, 70 A.D.3d 960, 960, 897 N.Y.S.2d 444; People v. James, 198 A.D.2d 146, 147, 603 N.Y.S.2d 859; People v. McClary, 138 A.D.2d 413, 413–414, 525 N.Y.S.2d 697). 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; 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 Supreme Court did not improvidently exercise its discretion in denying the defendant's request for an adverse inference charge as a sanction for the prosecution's failure to preserve a gun that allegedly belonged to the victim. The defendant's contention that the prosecution violated its obligation to preserve and disclose the gun under the Federal and New York Constitutions ( see California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; see also CPL 240.20[1][h] ) is without merit, since the defendant has not shown that the gun “possesse[d] an exculpatory value evident before its destruction, loss, or failure to preserve” ( People v. Jardin, 88 N.Y.2d 956, 958, 647 N.Y.S.2d 160, 670 N.E.2d 444; see California v. Trombetta, 467 U.S. at 489–490, 104 S.Ct. 2528; People v. Radesi, 11 A.D.3d 1007, 1007, 782 N.Y.S.2d 341; see also People v. Crandall, 38 A.D.3d 996, 997, 830 N.Y.S.2d 867; People v. Hernandez, 291 A.D.2d 263, 264, 738 N.Y.S.2d 309; People v. McDonald, 287 A.D.2d 655, 656, 732 N.Y.S.2d 32).
Further, the Supreme Court properly denied the defendant's request for a justification charge concerning his use of ordinary physical force to restrain the victim at the time when the shooter fired the fatal shot ( see Penal Law § 35.15[1] ).
The defendant failed to preserve for appellate review his contention that the Supreme Court's evidentiary rulings violated his constitutional rights ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61; People v. Haddock, 79 A.D.3d 1148, 1149, 917 N.Y.S.2d 634; People v. Martinez, 68 A.D.3d 1757, 1757–1758, 891 N.Y.S.2d 811).
The defendant's remaining contentions are without merit.