| People v Alston |
| 2009 NY Slip Op 03912 [62 AD3d 806] |
| May 12, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JonahAlston, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andMichael Shollar of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered January 12, 2007, convicting him of murder in the second degree (felonymurder), and attempted robbery in the first degree (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
In order to establish the affirmative defense to felony murder, a defendant must establish,among other things, that he or she "(a) [d]id not commit the homicidal act or in any way solicit,request, command, importune, cause or aid the commission thereof; and (b) [w]as not armedwith a deadly weapon, or any instrument, article or substance readily capable of causing death orserious physical injury and of a sort not ordinarily carried in public places by law-abidingpersons; and (c) [h]ad no reasonable ground to believe that any other participant was armed withsuch a weapon, instrument, article or substance; and (d) [h]ad no reasonable ground to believethat any other participant intended to engage in conduct likely to result in death or seriousphysical injury" (Penal Law § 125.25 [3]). Contrary to the defendant's contention, hefailed to make the requisite showing.
At trial, a witness for the prosecution testified to the defendant's admission that, during thecommission of the robbery, the accomplice handed a gun to the defendant, who then fired one ofthe shots that struck the victim. In fulfilling our responsibility to conduct an independent reviewof the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witness, hear the testimony, and observe[*2]demeanor (see People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Thus, even though the credibility of this witness was challenged, the jury was entitled tocredit the testimony, and the evidence in the record provided a reasonable basis for the jury'srejection of the affirmative defense. Upon reviewing the record here, we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85[1982]). Spolzino, J.P., Santucci, Belen and Lott, JJ., concur.