| People v Fortunato |
| 2010 NY Slip Op 06096 [75 AD3d 557] |
| July 13, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Fortunato, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M.Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser,J.), rendered November 20, 2007, convicting him of manslaughter in the second degree as a hatecrime and attempted petit larceny, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt ofmanslaughter in the second degree as a hate crime beyond a reasonable doubt is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]). In any event, viewingthe evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt of thatcrime beyond a reasonable doubt (seePeople v Hart, 8 AD3d 402 [2004]). Moreover, upon our independent review pursuantto CPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
The defendant did not preserve for appellate review his claim that the Supreme Court shouldhave charged the jury that the testifying accomplice's plea of guilty to attempted robbery in thesecond degree as a hate crime in the instant matter does not constitute evidence of thedefendant's guilt. In any event, any error was harmless (see People v Crimmins, 36NY2d 230 [1975]; People vHernandez, 11 AD3d 349 [2004]; People v Weinberg, 183 AD2d 932, 934[1992]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., Florio, Belen and Roman, JJ., concur. [Prior Case History: 2007 NY Slip Op33875(U).]