| People v Latorre |
| 2012 NY Slip Op 02990 [94 AD3d 1429] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jose Latorre,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Stephen J. Dilorenzo of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered September 8, 2010. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofmanslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends that theevidence is legally insufficient to support the conviction and that the verdict is against the weightof the evidence. The issue of legal sufficiency is preserved for our review regarding the evidenceof identification because that was the basis of defendant's motion for a trial order of dismissalafter the People presented their proof. Defendant failed, however, to preserve for our review hisfurther contention concerning the alleged legal insufficiency of the evidence of intent, inasmuchas defense counsel did not address the issue of intent in his motion for a trial order of dismissal(see generally People v Gray, 86 NY2d 10, 19 [1995]). With respect to the legalsufficiency of the identification evidence, we note that reversal is warranted "where the testimonyis incredible and unbelievable, that is, impossible of belief because it is manifestly untrue,physically impossible, contrary to experience, or self-contradictory" (People v Wallace,306 AD2d 802, 802-803 [2003] [internal quotation marks omitted]). We conclude that theevidence of identification in this case, although largely circumstantial, is legally sufficient tosupport the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Inaddition, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495; People v Flagg, 59 AD3d 1003, 1004 [2009], lv denied 12NY3d 853 [2009]). We further reject defendant's contention that defense counsel was ineffectivefor failing to request that Supreme Court charge a lesser included offense (see People v Calderon, 66 AD3d314, 320 [2009], lv denied 13 NY3d 858 [2009]). Finally, the sentence is not undulyharsh or severe. Present—Scudder, P.J., Fahey, Lindley and Martoche, JJ.