| People v Moghaddam |
| 2008 NY Slip Op 09424 [56 AD3d 801] |
| November 25, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AdamMoghaddam, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.),rendered June 20, 2006, convicting him of manslaughter in the second degree and assault in thethird degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of manslaughter in the second degree beyond a reasonable doubt (see Peoplev Heinsohn, 61 NY2d 855 [1984]; People v Newman, 26 AD3d 589 [2006];People v Hart, 8 AD3d 402 [2004]). Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]).
The trial court erred in allowing the testimony of a physician as to certain statements made tohim by the defendant, as such testimony violated the defendant's physician-patient privilege(see CPLR 4504 [a]; [*2]cf. People v Bowen, 229AD2d 954 [1996]). However, the evidence of the defendant's guilt, without reference to thephysician's challenged testimony, was overwhelming, and there is no reasonable probability thatthe error might have contributed to the defendant's conviction. Thus, the error was harmless(see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Lacewell, 44AD3d 876 [2007]; People v Bowen, 229 AD2d at 954).
The defendant's contention that he was denied his right to a fair trial by the allegedlyprejudicial effect of certain evidence indicating that he had smoked marijuana prior to the subjectincident is without merit.
Contrary to the defendant's contention, he was not denied his right to a fair trial by certainremarks made by the court that allegedly demeaned defense counsel in the presence of the jury,"since the court's actions did not 'cast[ ] a pall of suspicion' over the defendant's case" (Peoplev Grant, 184 AD2d 729 [1992], quoting People v De Jesus, 42 NY2d 519, 524[1977]; cf. People v Montes, 141 AD2d 767, 769 [1988]). In any event, the courteffectively alleviated any alleged prejudice to the defendant resulting from the remarks byinstructing the jury not to infer from its remarks that it holds any personal view against thedefendant and by also instructing the jury to disregard any exchanges between the court andcounsel, instructions that the jury is presumed to have followed (see People v Berg, 59NY2d 294, 300 [1983]).
To the extent the defendant's claim that he was denied his right to effective assistance ofcounsel is reviewable on the record before us (see People v Kinchen, 60 NY2d 772[1983]; People v Love, 57 NY2d 998, 1000 [1982]; People v Grove, 272 AD2d480 [2000]; People v Langhorne, 177 AD2d 713 [1991]), we find that the defendantreceived meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998];People v Baldi, 54 NY2d 137, 147 [1981]; People v Gillespie, 36 AD3d 626[2007]).
The defendant's contentions raised in Point Two of his supplemental pro se brief are withoutmerit, his contentions raised in Point One of his supplemental pro se brief are unpreserved forappellate review, and his contentions raised in Point Three of his supplemental pro se brief arenot reviewable on this appeal (see People v Jenkins, 38 AD3d 566 [2007]). Fisher, J.P.,Balkin, McCarthy and Leventhal, JJ., concur.