| People v Hudyih |
| 2009 NY Slip Op 02628 [60 AD3d 1084] |
| March 31, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rashad Hudyih, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered August 1, 2006, convicting him of attempted murder in the seconddegree and criminal possession of a weapon in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Where a defendant charged with an attempted homicide relies on a defense of justification,evidence of a victim's prior acts of violence, of which the defendant had knowledge, areadmissible provided that the acts were reasonably related to the crime with which the defendantwas charged (see People v Reynoso, 73 NY2d 816, 818 [1988]; People v Miller,39 NY2d 543, 552 [1976]; People v Washington, 44 AD3d 973, 973-974 [2007]).Here, the trial court providently exercised its discretion in limiting admission of the evidence ofthe victim's prior acts of violence. Moreover, the excluded evidence would have been merelycumulative (see People v Washington, 44 AD3d at 974).
The defendant's challenge to the legal sufficiency of the evidence regarding his defense ofjustification is unpreserved for appellate review (see CPL 470.05 [2]; People vHawkins, 11 NY3d 484, [*2]491-492 [2008]; see alsoPeople v Finger, 95 NY2d 894, 895 [2000]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (seePeople v Giammarino, 105 AD2d 802 [1984]). Further, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15 [5];People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's contention that he was penalized for going to trial rather than accepting aplea offer is also unpreserved for appellate review (see People v Evans, 16 AD3d 595,596 [2005]) and, in any event, is without merit. The sentencing minutes indicate that the courtrelied upon the appropriate factors in sentencing the defendant to a higher sentence than thatwhich was offered during plea negotiations (see People v Pena, 50 NY2d 400 [1980],cert denied 449 US 1087 [1981]; People v Evans, 16 AD3d at 596). The fact thatthe defendant's sentence was greater than the one he would have received had he pleaded guiltydoes not establish his entitlement to a lesser sentence (see People v Evans, 16 AD3d at596; People v Hinton, 285 AD2d 476 [2001]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Spolzino, J.P., Dillon, Florio and Angiolillo, JJ., concur.