| People v Capehart |
| 2009 NY Slip Op 03188 [61 AD3d 885] |
| April 21, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Capehart, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Jill Gross-Marksof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy,J.), rendered February 23, 2006, convicting him of murder in the second degree (two counts),gang assault in the first degree, robbery in the first degree, robbery in the second degree, andtampering with physical evidence, upon a jury verdict, and sentencing him to concurrentindeterminate terms of imprisonment of 25 years to life on the conviction of murder in thesecond degree under count one of the indictment (intentional murder) and 25 years to life on theconviction of murder in the second degree under count two of the indictment (felony murder),concurrent determinate terms of imprisonment of 25 years on the conviction of gang assault inthe first degree and 15 years on the conviction of robbery in the second degree, to runconcurrently with the sentences imposed for the convictions of murder in the second degreeunder count one of the indictment and murder in the second degree under count two of theindictment, a determinate term of imprisonment of 25 years on the conviction of robbery in thefirst degree, to run consecutively to the sentence imposed on the conviction of murder in thesecond degree under count one of the indictment, and an indeterminate term of imprisonment of1
Ordered that the judgment is modified, on the law, by providing that the term ofimprisonment [*2]imposed upon the conviction of robbery in thefirst degree shall run concurrently with the terms of imprisonment imposed upon the convictionsof murder in the second degree under count one of the indictment (intentional murder) andmurder in the second degree under count two of the indictment (felony murder); as so modified,the judgment is affirmed.
The defendant's assertion that the trial court erred in not giving a circumstantial evidencecharge is unpreserved for appellate review (see CPL 470.05 [2]; People v Stewart, 11 AD3d 568[2004]; People v Kitchens, 268 AD2d 444 [2000]) and, in any event, is without merit(see People v Ruiz, 52 NY2d 929, 930 [1981]; People v McCoy, 30 AD3d 441, 443 [2006]; People vBattle, 160 AD2d 948, 949 [1990]).
Contrary to the defendant's contention, the nonaccomplice testimony offered by the Peoplewas sufficient to corroborate the accomplice's testimony (see CPL 60.22 [1]; People v Williams, 8 AD3d 592[2004]; People v Abney, 139 AD2d 581 [1988]; People v Miller, 116 AD2d 596[1986]). Moreover, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt.
"Since the defendant's guilt was proven beyond a reasonable doubt at trial, there can be noappellate review of the issue of whether a prima facie case was presented to the grand jury" (People v Folkes, 43 AD3d 956,957 [2007]; see CPL 210.30 [6]; People v Hall, 32 AD3d 864 [2006]; People v Bedell, 272AD2d 622 [2000]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord greatdeference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Furthermore, the prosecutor's statements were fair comment on the evidence, permissiblerhetorical comment, and responsive to defense counsel's summation (see People v Martin, 54 AD3d776, 777 [2008]; People v Walker, 207 AD2d 811, 811 [1994]; People vMack, 197 AD2d 595, 596 [1993]; People v Smith, 181 AD2d 927, 927-928 [1992];People v Kornegay, 164 AD2d 868, 868-869 [1990]).
However, under the second prong of Penal Law § 70.25 (2), the People failed toestablish that the act constituting the use of a dangerous instrument with respect to the charge ofrobbery in the first degree was separate and distinct from the act that caused the victim's deathwith respect to the charge of murder in the second degree under count one of the indictment(intentional murder) (see People v Parks, 95 NY2d 811, 815 [2000]; People vUnderwood, 52 NY2d 882, 883 [1981]). As such, the Supreme Court should have directedthat the sentence imposed on the conviction for robbery in the first degree was to runconcurrently with the sentence imposed on the conviction for intentional murder (see Peoplev Laureano, 87 NY2d 640, 643 [1996]; People v Roman, 279 AD2d 485, 486[2001]; People v Fullan, 237 AD2d 619, 619-620 [1997]; People v Marro, 225AD2d 796, 797 [1996]; People v Perez, 212 AD2d 814, 815 [1994]; People vGerman, 139 AD2d 529, 530 [1988]).
The defendant's remaining contentions are without merit. Mastro, J.P., Covello, Eng andLeventhal, JJ., concur.