| People v Green |
| 2013 NY Slip Op 06587 [110 AD3d 825] |
| October 9, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jeremy Green, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andSharon Y. Brodt of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hanophy, J.), rendered October 6, 2008, convicting him of manslaughter in the firstdegree and criminal possession of a weapon in the fourth degree, upon a jury verdict, andsentencing him to a determinate term of imprisonment of 18 years plus a period of fiveyears of postrelease supervision on the conviction of manslaughter in the first degree anda definite sentence of incarceration of one year on the conviction of criminal possessionof a weapon in the fourth degree, to run concurrently.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed on the conviction of manslaughter in the firstdegree from a determinate term of imprisonment of 18 years plus a period of five years ofpostrelease supervision to a determinate term of imprisonment of 10 years plus a periodof five years of postrelease supervision; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to disprove thedefendant's justification defense beyond a reasonable doubt (see People v Rodriguez, 73AD3d 815 [2010]; People vChung, 39 AD3d 558, 559 [2007]; People v Terrero, 31 AD3d 672 [2006]; People vYoung, 240 AD2d 974, 976-977 [1997]; People v Henegan, 150 AD2d 606[1989]). Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the factfinder's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant contends that the admission into evidence of the victim's autopsyreport without the testimony of the medical examiner who prepared the report deprivedhim of his constitutional right of confrontation. This contention is unpreserved forappellate review, and, in any event, is without merit (see People v Freycinet, 11 NY3d 38 [2008]; People v Rawlins, 10 NY3d136 [2008]).
The defendant's contentions concerning the propriety of the prosecutor's questionswith respect to whether the defendant was a member of a youth gang are unpreserved forappellate [*2]review (see People v Desir, 102 AD3d 809 [2013]; People v Adams, 93 AD3d734, 735 [2012]; People vAlvarez, 88 AD3d 807, 808 [2011]). In any event, the defendant was notdeprived of a fair trial as a result of such questioning, since the questioning on thissubject was minimal, and the prosecutor did not challenge the witnesses' denial of ganginvolvement (see People v Keith, 136 AD2d 657 [1988]).
Although the testimony of the victim's mother constituted, at least in part,inadmissible hearsay, the admission into evidence of her testimony was harmless, sincethe evidence of the defendant's guilt was overwhelming, and there was no significantprobability that the error contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 241-242 [1975]).
Under the circumstances of this case, the Supreme Court providently exercised itsdiscretion in denying the defendant's request for youthful offender treatment (seeCPL 720.20 [1]; People vBarrett, 105 AD3d 862, 864 [2013]; People v Terpening, 79 AD3d 1367, 1368 [2010]).However, the sentence imposed was excessive to the extent indicated herein.
The defendant's remaining contentions are without merit. Skelos, J.P., Hall, Cohenand Hinds-Radix, JJ., concur.