| People v Morency |
| 2012 NY Slip Op 01830 [93 AD3d 736] |
| March 13, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gregory Morency, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered October 16, 2009, convicting him of manslaughter in the first degree, criminalpossession of a weapon in the second degree, and endangering the welfare of a child (fourcounts), upon a jury verdict, and sentencing him to determinate terms of 15 years ofimprisonment on the conviction of manslaughter in the first degree and 3½ years ofimprisonment on the conviction of criminal possession of a weapon in the second degree, to runconsecutively, and a definite term of one year of imprisonment on each of the convictions ofendangering the welfare of a child, to run concurrently with each other and the other terms ofimprisonment.
Ordered that the judgment is modified, on the law, by directing that the term ofimprisonment imposed on the conviction of criminal possession of a weapon in the seconddegree shall run concurrently with the term of imprisonment imposed on the conviction ofmanslaughter in the first degree; as so modified, the judgment is affirmed.
The defendant was convicted of manslaughter in the first degree, criminal possession of aweapon in the second degree, and four counts of endangering the welfare of a child after shootingand fatally wounding the decedent. Both the decedent and the defendant suffered multiplegunshot wounds as a result of the incident. The defendant claimed that the shooting was justifiedbecause the decedent pulled out a gun on him, and that the decedent was accidentally shot duringa struggle for the gun.
The defendant's contention that the People failed to present legally sufficient evidence todisprove the defense of justification in order to sustain his conviction of manslaughter in the firstdegree beyond a reasonable doubt is unpreserved for appellate review (see generally Matter of Gilberto M., 89AD3d 734 [2011]). In any event, this contention is without merit. Viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to disprove the defendant's justification defense andto establish the defendant's guilt of manslaughter in the first degree beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of the [*2]weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the factfinder's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383[2004], cert denied 542 US 946 [2004]). Upon reviewing the record here, we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that the testimony of the shooting reconstruction expert shouldhave been precluded is unpreserved for appellate review (see generally People v Lebron, 87 AD3d 1162 [2011]). In anyevent, the contention is without merit. Generally, the admission of expert testimony is a matterwithin the sound discretion of the trial court (see generally Jean-Louis v City of New York, 86 AD3d 628[2011]). The conclusions and opinions expressed by the shooting reconstruction expert weresufficiently based upon facts in the record and, therefore, were admissible (see Brullo vSchiro, 239 AD2d 309 [1997]). Any alleged weaknesses in the expert's testimony went to thecredibility and weight of the evidence rather than to its admissibility (see People vGarcia, 299 AD2d 493 [2002]).
Similarly, the Supreme Court did not err in admitting a computer-generated animation of thedecedent's shooting as demonstrative evidence to illustrate the expert's testimony. "It is for thetrial court, in the exercise of its sound discretion, [and] based upon the nature of proof and thecontext in which it is offered, to determine whether the value of the evidence outweighs itspotential for prejudice" (People v Yates, 290 AD2d 888, 889-890 [2002] [internalquotation marks omitted]). Contrary to the defendant's contention, the conditions present in thecomputer-generated animation were sufficiently similar to the conditions present at the time ofthe shooting (cf. Kane v TriboroughBridge & Tunnel Auth., 8 AD3d 239 [2004]). In addition, the court minimized anypotential prejudice by giving extensive jury instructions emphasizing that the animation wasbeing admitted strictly for demonstrative purposes and that it had no bearing on the issue of thedefendant's guilt or innocence (id.).
The defendant's contention that the Supreme Court coerced the jury to agree upon a particularverdict or upon a verdict in general is unpreserved for appellate review since the defendant failedto object or to request a supplemental instruction (see People v Morales, 36 AD3d 631 [2007]). In any event, theSupreme Court's remark that if the jury was not close to a verdict, it would adjourn the case untilthe following day did not constitute an attempt to coerce or compel the jury to agree upon aparticular verdict, or any verdict (see People v Sharff, 38 NY2d 751 [1975]; People vDavis, 259 AD2d 627 [1999]).
However, the Supreme Court erred in directing that the term of imprisonment imposed on theconviction for criminal possession of a weapon in the second degree run consecutively with theterm of imprisonment imposed on the conviction of manslaughter in the first degree. Theevidence adduced at trial, namely the defendant's statements to the police, demonstrated that thedecedent was the initial aggressor since she pulled out the gun from beneath her bed. The partiesstruggled over the gun and both suffered gunshot wounds. Based on such evidence, theprosecution did not establish that the defendant possessed a dangerous instrument with a purposeunrelated to his intent to use it against the victim (see Penal Law § 70.25 [2]; People v Hamilton, 4 NY3d 654[2005]; People v Jackson, 83 AD3d962, 963 [2011]; People vPoux, 69 AD3d 766 [2010]; People v Hernandez, 46 AD3d 574, 576-577 [2007]). Therefore,the term of imprisonment imposed on the conviction of criminal possession of a weapon in thesecond degree must run concurrently with the sentence imposed on the conviction ofmanslaughter in the first degree. Angiolillo, J.P., Lott, Austin and Cohen, JJ., concur.