| People v White |
| 2008 NY Slip Op 03036 [50 AD3d 708] |
| April 1, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dyshawn White, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort,and Marie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.),rendered October 27, 2005, convicting him of manslaughter in the first degree, criminalpossession of a weapon in the second degree, and reckless endangerment in the first degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The prosecution's theory at trial was that, in retaliation for a prior attack on the defendant'suncle, the defendant repeatedly shot at the unarmed victim and his brother as they fled. Thevictim was hit in the back by one of the bullets and subsequently died. The defendant wascharged with, and convicted of, inter alia, manslaughter in the first degree and recklessendangerment in the first degree.
The defendant objected to the simultaneous submission of the manslaughter and recklessendangerment counts on the ground that the two counts were based on inconsistent states ofmind. The court overruled the objection, explaining that the manslaughter charge concerned thedefendant's alleged conduct against the victim, while the reckless endangerment chargeconcerned his alleged conduct against "other people in the street." The defendant made no furtherobjection to the court's charge. On appeal, the defendant contends that the court's charge onreckless endangerment did not clearly specify that this count pertained only to the recklesscreation of a grave risk of death to a person other than the victim. As this specific issue wasnever brought to the attention of the trial court, it is unpreserved for appellate review (seeCPL 470.05 [2]), and we decline to reach it in the [*2]exercise of our interest of justice jurisdiction.
Moreover, although the defendant does not challenge the legal sufficiency of the evidence, orcontend that the verdict of guilt was against the weight of the evidence, we note that in weighingthe evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]; People v Cooper, 88 NY2d 1056, 1058 [1996]; People v Noble,86 NY2d 814, 815 [1995]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's remaining contention is unpreserved for appellate review (see CPL470.05 [2]; People v Odubogun, 36AD3d 942 [2007]) and we decline to review it in the exercise of our interest of justicejurisdiction. Prudenti, P.J., Fisher, Florio and McCarthy, JJ., concur.