| People v McGeachy |
| 2010 NY Slip Op 05026 [74 AD3d 989] |
| June 8, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CliveMcGeachy, Appellant. |
—[*1]
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered October 21, 2008, convicting him of manslaughter in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's claim that the Supreme Court erred in submitting manslaughter in the firstdegree (see Penal Law § 125.20 [1]) as a lesser-included offense of murder in thesecond degree (see Penal Law § 125.25 [1]) is waived inasmuch as the defendantdid not object to the submission of the charge of manslaughter in the first degree before the juryretired to deliberate (see CPL 300.50 [1]; People v Ford, 62 NY2d 275, 282-283[1984]; People v Tavarez, 70 AD3d732 [2010], lv denied 14 NY3d 845 [2010]).
Furthermore, the defendant's challenge to the Supreme Court's refusal to charge criminallynegligent homicide as a lesser-included offense of murder in the second degree is foreclosed bythe jury's verdict finding him guilty of manslaughter in the first degree, and its implicit rejectionof the lesser-included offense of manslaughter in the second degree which had been submitted toit (see People v Green, 5 NY3d538, 545 [2005]; People v Johnson, 87 NY2d 357, 361 [1996]; People vBoettcher, 69 NY2d 174, 180 [1987]; People v Beriguete, 51 AD3d 939, 939-940 [2008]; People v McMurry, 30 AD3d 444[2006]; People v Plumey, 255 AD2d 462, 462-463 [1998]; People v Greenwald,236 AD2d 625, 626 [1997]).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05; People v Hawkins, 11 NY3d 484, 492 [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. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People 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 are satisfied that the verdict of guilt was notagainst the weight of the evidence (see[*2]People v Romero, 7 NY3d 633 [2006]).
The Supreme Court properly denied, without a hearing, the defendant's motion to controverta search warrant issued by the Supreme Court (Heffernan, J.) on December 22, 2006. Thedefendant failed to make the necessary substantial preliminary showing that the warrant wasbased upon an affidavit containing false statements made knowingly or intentionally, or withreckless disregard for the truth (see Franks v Delaware, 438 US 154, 155-156 [1978];People v Cohen, 90 NY2d 632, 637 [1997]; People v Alfinito, 16 NY2d 181, 186[1965]; People v Rhodes, 49 AD3d668, 669 [2008]; People vTordella, 37 AD3d 500 [2007]; People v Novick, 293 AD2d 692 [2002]).
The defendant's remaining contentions are without merit. Fisher, J.P., Covello, Hall andSgroi, JJ., concur.