| People v Oddone |
| 2011 NY Slip Op 08170 [89 AD3d 868] |
| November 9, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AnthonyOddone, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.),rendered April 14, 2010, convicting him of manslaughter in the first degree, upon a jury verdict, andsentencing him to a determinate term of 22 years of imprisonment, with five years of postreleasesupervision.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed on the conviction of manslaughter in the first degree from a determinateterm of 22 years of imprisonment with five years of postrelease supervision to a determinate term of 17years of imprisonment with five years of postrelease supervision; as so modified, the judgment isaffirmed.
On August 6, 2008, during ladies' night at the Publick House, a Southampton brewery restaurant,the defendant and a woman were dancing on top of a table. Andrew Reister (hereinafter the victim), abouncer, asked the defendant to get off the table. After the defendant ignored the victim's request, thevictim either pulled or pushed the defendant off the table and both men ended up on the floor. Duringthe scuffle that ensued, the defendant got behind the victim and placed him in a hold which witnessesdescribed as a chokehold or headlock. The defendant maintained this hold on the victim even after theyfell to the ground despite efforts by bystanders to break his hold and pleas from people in the crowdthat he should stop. When he was finally released, the victim fell flat on his face and did not appear tobe moving. The incident ended when the [*2]defendant released thevictim, got up, and quickly left the building. After the defendant fled, several people rushed to thevictim's aid. He had no pulse. Although the victim was eventually resuscitated at Southampton Hospital,he was declared brain dead two days later. The victim did not die of asphyxiation. He died of a cardiacarrest resulting from overstimulation of his carotid sinus. After a lengthy trial and nine days ofdeliberation, a jury found the defendant guilty of manslaughter in the first degree.
The defendant's contention that the People failed to disprove his justification defense beyond areasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492[2008]; People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, is without merit. Viewingthe evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt of manslaughterin the first degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe 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 not against the weight ofthe evidence (see People v Romero, 7NY3d 633 [2006]).
The County Court properly denied, without a hearing, the defendant's application to strike thetestimony of the People's forensic pathologist regarding the presence of small hemorrhages calledpetechiae on the outside surface of the victim's eyelids and the fact that the victim's face turned purpleimmediately after the incident. New York courts evaluate the admissibility of expert testimony under theFrye test (see Frye v United States, 293 F 1013 [1923]; People v Wernick,89 NY2d 111 [1996]; Parker v Mobil OilCorp., 7 NY3d 434 [2006]), pursuant to which such testimony must be based on principlesthat are generally accepted in the relevant scientific community (see People v LeGrand, 8 NY3d 449 [2007]; People v Wernick,89 NY2d at 111; People v Wesley, 83 NY2d 417 [1994]). However, it is well settled thatthere is no basis for a Frye hearing where the challenge is to the reliability of the expert'sconclusions. Frye is only implicated where a question as to whether the expert's methodologiesor deductions are based upon principles that are sufficiently established to have gained generalacceptance as reliable (see Ellis v Eng,70 AD3d 887 [2010]; Lipschitz vStein, 65 AD3d 573, 576 [2009]; Alston v Sunharbor Manor, LLC, 48 AD3d 600 [2008]). Here, theCounty Court properly determined that Frye was inapplicable to the expert's testimony. Theexpert testified and made conclusions based on his personal observations and experiences as a forensicpathologist for many years. The defendant's factual disagreement with the expert's theory regarding thecause of the petechiae on the outside surface of the victim's eyelids and the fact that his face turnedpurple immediately after the incident did not require a Frye hearing (see Lipschitz v Stein, 65 AD3d 573[2009]; Nonnon v City of New York, 32AD3d 91 [2006], affd 9 NY3d 825 [2007]).
Contrary to the defendant's contention, the County Court did not err in refusing to give anintoxication charge to the jury (see Penal Law § 15.25). Viewing the evidence in the lightmost favorable to the defendant (see People v Gaines, 83 NY2d 925, 927 [1994]), we findthat there was insufficient evidence presented regarding the quantity of liquor consumed by thedefendant and its consequent effects to warrant a charge on intoxication (id.; see People v Brown, 73 AD3d 940[2010]; People v Sirico, 66 AD3d1047 [2009]; People v Garcia, 271 AD2d 695 [2000]; People v Pringle, 270AD2d 291 [2000]; People v Cortez, 184 AD2d 571 [1992]).
The defendant contends that the People's summation remarks constituted reversible error.However, the challenged comments were either fair comment on the evidence (see People v [*3]Ashwal, 39 NY2d 105 [1976]), responsive to arguments andtheories presented in the defense summation (see People v Galloway, 54 NY2d 396 [1981];People v Crawford, 54 AD3d 961[2008]), or harmless error (see People v Crimmins, 36 NY2d 230, 241-242 [1975];People v Hill, 286 AD2d 777, 778 [2001]).
The sentence imposed by the County Court, based upon the conviction of manslaughter in the firstdegree, was excessive to the extent indicated herein (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are without merit or do not require reversal. Mastro, J.P.,Hall, Lott and Cohen, JJ., concur.