| People v Asaro |
| 2012 NY Slip Op 02511 [94 AD3d 773] |
| April 3, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Patrick A. Asaro, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Middletown, N.Y. (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.),rendered July 30, 2010, convicting him of manslaughter in the second degree, assault in thesecond degree (four counts), assault in the third degree (two counts), reckless endangerment, andreckless driving, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant preserved for appellate review hiscontention that the evidence was not legally sufficient to establish his guilt of manslaughter in thesecond degree beyond a reasonable doubt, and more specifically, that he acted recklessly(see CPL 470.05 [2]). However, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The defendant wasaware of, and consciously disregarded, a substantial and unjustifiable risk that his actions wouldcause the death of another, such that his conduct was reckless, and not merely negligent, or theresult of carelessness, lack of foresight, or skill (see Penal Law § 15.05 [3];People v Heinsohn, 61 NY2d 855 [1984]; People v Wolz, 300 AD2d 606 [2002];People v Miller, 286 AD2d 981 [2001]; People v Jones, 198 AD2d 436 [1993]).
The defendant also preserved for appellate review his contention that the verdict acquittinghim of driving while impaired but convicting him of manslaughter in the second degree isrepugnant (see CPL 470.05 [2]). However, the defendant's contention is without merit(see People v Schaffer, 80 AD2d 865 [1981]).
Contrary to the People's contention, the defendant preserved for appellate review his [*2]contention that the adverse witness charge was an insufficientsanction for the Rosario violation (see People v Rosario, 9 NY2d 286 [1961],cert denied 368 US 866 [1961]; CPL 470.05 [2]). However, the defendant's contention iswithout merit. Although the People's expert accident reconstructionist had lost his original noteswhich contained certain mathematical computations he used to determine the speed of thevehicles involved in the accident at the time of impact, the defense had the expert's report, whichwas prepared based upon the lost notes, and was able to cross-examine the expert about hismethodology for determining the speed of the vehicles involved, including the variables used inthe formula he employed. As such, the determination to give an adverse witness charge, ratherthan striking the expert's testimony, was a provident exercise of discretion (see People vBanch, 80 NY2d 610 [1992]; People v Martinez, 71 NY2d 937 [1988]).Furthermore, contrary to the defendant's contention, the language of the adverse inference chargewas appropriate under the circumstances.
The defendant failed to preserve for appellate review his contention that he was deprived of afair trial by certain remarks made by the prosecutor during his opening and closing statements. Inany event, the contention is without merit (see People v Gadsden, 82 AD3d 902 [2011]; People vValdes, 291 AD2d 513 [2002]).
The defendant's remaining contention is without merit. Dillon, J.P., Angiolillo, Florio andCohen, JJ., concur.