| People v Gumbs |
| 2009 NY Slip Op 00225 [58 AD3d 641] |
| January 13, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nehru Gumbs, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, andMichael J. Balch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered October 11, 2005, convicting him of manslaughter in the first degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt ofcriminal possession of a weapon in the second degree is unpreserved for appellate review as nosuch contention was raised before the Supreme Court. In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), wefind that it was legally sufficient to establish the defendant's guilt of manslaughter in the firstdegree (see Penal Law § 125.20 [1]) and criminal possession of a weapon in thesecond degree (see Penal Law § 265.03 [2]) beyond a reasonable doubt. Thedefendant's intent to cause serious physical injury (see Penal Law § 10.00 [10])may be inferred from his conduct and the surrounding circumstances (see People v Bracey,41 NY2d 296, 303 [1977]; People vMei Ying Wang, 33 AD3d 820, 821 [2006]). Furthermore, the testimony of theeyewitness was not incredible as a matter of law and was corroborated by other evidence (see People v Gouvatsos, 45 AD3d779, 780 [2007]). Moreover, upon our independent review pursuant to CPL 470.15 (5), weare satisfied that the verdict of guilt, including the jury's credibility findings, was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).[*2]
The defendant's contention that the Supreme Courtimproperly considered charges of which he was acquitted as a basis for imposing the sentence iswithout merit. Further, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]). Spolzino, J.P., Covello, Balkin and Belen, JJ., concur.