| People v Bey |
| 2010 NY Slip Op 02806 [71 AD3d 1156] |
| March 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Yusef N. Bey, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Ushir Pandi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered January 3, 2008, convicting him of murder in the second degree, attempted murder inthe second degree (two counts), and criminal possession of a weapon in the second degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of attempted murder in the second degree is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt (see People v Cartwright, 61 AD3d 695 [2009]; People vSayles, 57 AD3d 698 [2008]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]).
Contrary to the defendant's contention, the trial court properly refused to instruct the jurywith respect to manslaughter in the first degree as a lesser-included offense of intentional murder(see CPL 300.50; People v Butler, 84 NY2d 627 [1994]). Under no reasonableview of the evidence could the jury have found that the defendant committed the lesser offensebut not the greater (see People v Alexis, 65 AD3d 1160 [2009]; People v Rivera,2 AD3d 542 [2003]; People v Collins, 290 AD2d 457, 458 [2002]).
The defendant's contention that the prosecutor violated the unsworn witness rule whilequestioning the rebuttal witness and during summation is unpreserved for appellate review and,in any event, is without merit (see CPL 470.05 [2]; People v Tapper, 64 AD3d620, 621 [2009]; People v Ferguson, 15 AD3d 675, 676 [2005]). Furthermore, thedefendant's contention that various comments made by the prosecutor [*2]during his summation were improper and deprived him of a fairtrial is unpreserved for appellate review, as the defendant either did not object to the remarks atissue or made only general one-word objections (see CPL 470.05 [2]; People vClarke, 65 AD3d 1055, 1056 [2009]; People v Philbert, 60 AD3d 698, 699 [2009]).In any event, most of the challenged remarks in the prosecutor's summation constituted faircomment on the evidence or were responsive to the arguments presented in defense counsel'ssummation (see People v Clarke, 65 AD3d 1055, 1056 [2009]; People v Philbert,60 AD3d at 699). To the extent that some of the remarks were improper, they did not warrantreversal (see People v Tapper, 64 AD3d at 621; People v Philbert, 60 AD3d at699).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Dillon, J.P., Balkin, Dickerson and Lott, JJ., concur.