| People v Garguilio |
| 2008 NY Slip Op 10020 [57 AD3d 797] |
| December 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AndrewGarguilio, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'HaraGillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), renderedJuly 19, 2006, convicting him of murder in the second degree, upon a jury verdict, and sentencing himto an indeterminate term of 20 years' to life imprisonment.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence to an indeterminate term of 15 years' to life imprisonment; as so modified, thejudgment is affirmed.
The defendant's contentions that the prosecution failed to present legally sufficient evidence todisprove his justification defense and to establish the elements of murder in the second degree beyond areasonable doubt are unpreserved for appellate review (see CPL 470.05 [2]; People vGray, 86 NY2d 10, 19 [1995]; People vFlores, 43 AD3d 955 [2007]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to disprove the justification defense and establish the defendant's guilt beyond a reasonabledoubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Furthermore, the defendant's conviction should not be reduced to manslaughter based upon theapplication of the affirmative defense of extreme emotional disturbance. The defendant contended attrial that his acts in stabbing the victim to death were justified. He chose not to pursue the affirmativedefense of extreme emotional disturbance which, if successfully established, would have permitted thejury to find him guilty of manslaughter. The defendant's tactics failed. On appeal he asks this Court toapply the extreme emotional disturbance affirmative defense and reduce his [*2]conviction. However, we decline to provide him with a secondopportunity to present a defense which he earlier rejected for strategic purposes (see People vVineski, 162 AD2d 484 [1990]).
The defendant failed to preserve for appellate review his contention that he was denied a fair trialas a result of prosecutorial misconduct during the prosecutor's summation. The defendant raised noobjection to the prosecutor's challenged comments during his summation and failed to move for amistrial (see CPL 470.05 [2]; Peoplev Williams, 8 NY3d 854 [2007]; People v Pinkney, 48 AD3d 707 [2008]). In any event, any error doesnot require reversal.
Contrary to the defendant's contention, the prosecutor was not required to produce the grand jurytestimony of one witness who was present at the scene of a fight between the defendant and the victimwhich preceded the stabbing. The witness's grand jury testimony lacked exculpatory value, anddisclosure was not warranted pursuant to Brady v Maryland (373 US 83 [1963]).Furthermore, disclosure was not warranted pursuant to People v Rosario (9 NY2d 286[1961], cert denied 368 US 866 [1961]), since the witness was not a prosecution trial witness(see People v Ranghelle, 69 NY2d 56 [1986]; People v Spirito, 172 AD2d 196[1991]). We further conclude that the People properly exercised their discretion in declining to confertransactional immunity upon the witness (see People v Owens, 63 NY2d 824, 825 [1984];People v Shapiro, 50 NY2d 747, 760 [1980]; People v Sapia, 41 NY2d 160 [1976],cert denied 434 US 823 [1977]; People v Littles, 309 AD2d 949 [2003]).
Additionally, the evidence before the grand jury established that when the defendant stabbed thevictim multiple times with a knife, the victim was not armed, and the defendant had no reason to believethat the victim was about to use deadly physical force against him. Therefore, the prosecutor was notobligated to give the grand jury a justification charge (see People v Marquez, 8 AD3d 588 [2004]).
The defendant's challenge to the charge given by the trial court on the issue of justification isunpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10[1995]). In any event, the court's charge was proper (see People v Floyd, 34 AD3d 494 [2006]; People v Carranza,306 AD2d 351 [2003], affd 3 NY3d 729 [2004]; see also People v Petty, 7 NY3d 277, 285 [2006]; Stokes vPeople, 53 NY 164 [1873]).
The sentence imposed was excessive to the extent indicated.
The defendant's remaining contentions are without merit. Mastro, J.P., Angiolillo, Carni and Eng,JJ., concur.