| People v Acevedo |
| 2011 NY Slip Op 04692 [84 AD3d 1390] |
| May 31, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dennys Acevedo, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, andAdam Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered December 4, 2008, convicting him of manslaughter in the first degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
The defendant's contention that the photographic identification procedure was undulysuggestive is unpreserved for appellate review, since he failed, at a Wade hearing (seeUnited States v Wade, 388 US 218 [1967]), to raise the specific grounds upon which he nowchallenges the procedure (see CPL 470.05 [2]; People v Fields, 66 AD3d 799[2009]; People v Lago, 60 AD3d 784, 784-785 [2009]). In any event, the defendant'sclaim that the photographs of the fillers used in the six-person photo array were so dissimilar inappearance from his own photograph that they rendered the array unduly suggestive is notsupported by the record (see People v Seymour, 77 AD3d 976, 978 [2010]; People vRussell, 58 AD3d 759, 760 [2009]; People v Howard, 50 AD3d 823 [2008];People v Ragunauth, 24 AD3d 472, 472-473 [2005]). Furthermore, the fact that one ofthe witnesses identified the defendant when presented with a stack of 27 photographs, and thenfour months later identified the same photograph of the defendant from the six-person photoarray, did not render the photographic identification procedure unduly suggestive (seegenerally People v Ortiz, 84 AD3d 839 [2011]; People v Seymour, 77 AD3d 976[2010]; People v Hunte, 276 AD2d 717 [2000]; People v Martinez, 2002 NY SlipOp 50165[U] [2002]).
The defendant contends that the evidence was legally insufficient to establish his intent toinflict serious physical injury upon the victim. Contrary to the People's contention, thedefendant's challenge is preserved for appellate review (see People v Mendez, 34 AD3d697 [2006]; People v Soto, 8 AD3d 683 [2004]). Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish that the defendant intended to cause serious physical injury tothe victim and caused the victim's death (see Penal Law § 125.20 [1]; People vPickens, 60 AD3d 699, 702 [2009]; People v Wilson, 49 AD3d 673, 674 [2008];People v Bisono, 37 AD3d 844 [2007]; People v Love, 37 AD3d 618, 619[2007]; People v Gill, 20 AD3d 434 [2005]; People v Barnes, 265 AD2d 169[1999]; People v Angel, 185 AD2d 356, 358 [1992]). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord [*2]great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004], certdenied 542 US 946 [2004]). Upon reviewing the record here, we are satisfied that the verdictof guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that the Supreme Court should have instructed the jury withregard to the defense of justification under Penal Law § 35.15 is unpreserved for appellatereview, since he never requested such a charge (see People v Harrell, 59 NY2d 620, 622[1983]; People v Moore, 66 AD3d 707, 709-710 [2009], affd 15 NY3d 811[2010]; People v White, 305 AD2d 616 [2003]). In any event, contrary to the defendant'scontention, the Supreme Court was not required to give the charge, sua sponte, as such aninstruction would have interfered with the defendant's theory of the case that the People failed todemonstrate that he possessed the requisite intent, and that he was not an accessory under PenalLaw § 20.00 (see People v Kin Wong, 81 AD3d 421 [2011]; People vJohnson, 75 AD3d 426 [2010]; People v Moore, 66 AD3d at 711-712; People vCastano, 236 AD2d 215 [1997]; see generally People v DeGina, 72 NY2d 768, 776[1988]).
The defendant contends that he was deprived of a fair trial by various questions posed by theprosecutor when cross-examining him and his witness regarding their involvement andfamiliarity with a particular gang. While the prosecutor's questions pertaining to ganginvolvement were improper since there was no connection between gang membership and thealleged crime, they did not deprive the defendant of a fair trial (see People v Turner, 46AD3d 847, 848 [2007]; People v Sellan, 143 AD2d 690 [1988]). Rivera, J.P., Dickerson,Lott and Cohen, JJ., concur.