| People v Herb |
| 2013 NY Slip Op 06590 [110 AD3d 829] |
| October 9, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Corey Herb, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and ThomasM. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of Supreme Court, Kings County (Chun,J.), rendered August 17, 2011, convicting him of manslaughter in the first degree andcriminal possession of a weapon in the second degree (two counts), upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that theconviction of manslaughter in the first degree was not supported by legally sufficientevidence (see CPL 470.05 [2]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]),we find that it was legally sufficient to prove his guilt of that crime beyond a reasonabledoubt.
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Contrary to the defendant's contention, the testimony given by the two main prosecutionwitnesses afforded a credible foundation upon which the jury could find the defendantguilty of manslaughter in the first degree. One witness testified that he observed thecodefendant hand a gun to the defendant on Flatbush Avenue, and about an hour later,observed the defendant, the codefendant, and a third man walking together on FlatbushAvenue and turning onto Midwood Street. Less than a minute later, the witness heard agunshot. The second witness observed the defendant and two men walking on MidwoodStreet, where they confronted and argued with the victim and his two friends. From about12 to 15 feet away, the second witness observed the defendant pull out a gun from theback of his belt or pants. The witness turned and ran, hearing shots fired "the minute [he]turned [his] back." Both prosecution witnesses had sufficient opportunity to observe thedefendant at the time of their respective observations and, thus, their identifications ofthe defendant from a lineup and in court were reliable. Upon reviewing the record as awhole, we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7NY3d 633 [2006]).[*2]
The defendant contends that admission of anautopsy report prepared by Dr. Julia De La Garza through the testimony of anotherphysician employed by the medical examiner's office violated his right of confrontation,as secured to him under the Sixth Amendment to the United States Constitution. Thiscontention is without merit, since the defendant was afforded full cross-examination ofthe testifying expert witness. The defendant further contends that De La Garza's opinionconcerning the cause and manner of the decedent's death constituted testimonial evidenceand, thus, admission of the unredacted report into evidence deprived him of his right toconfront a witness against him. However, at trial, the defendant did not object to theadmission of the autopsy report on this ground and, thus, his contention is not preservedfor appellate review (see CPL 470.05 [2]). In any event, even if the report couldbe deemed to include testimonial evidence (see People v Pealer, 20 NY3d 447, 453-454 [2013]; cf. People v Freycinet, 11NY3d 38, 42 [2008]), we are satisfied that the evidence of the defendant's guilt,without reference to any error in its admission, was overwhelming, and there is noreasonable possibility that the error contributed to the defendant's conviction. Thus, anyerror in its admission was harmless beyond a reasonable doubt (see People v Hardy, 4 NY3d192, 198 [2005]; People v Crimmins, 36 NY2d 230, 237 [1975]).
The defendant's contention that certain of the prosecutor's comments duringsummation deprived him of a fair trial is unpreserved for appellate review because he didnot object to the challenged comments (see CPL 470.05 [2]; People v Alexander, 100AD3d 649, 650 [2012]; People v West, 86 AD3d 583, 584 [2011]). In any event,the comments by the prosecutor constituted fair comment on the evidence (see People v Gouveia, 88AD3d 814 [2011]; People v Ashwal, 39 NY2d 105 [1976]), were responsiveto arguments and theories presented in the defense's summation (see People vGouveia, 88 AD3d at 814; People v Galloway, 54 NY2d 396 [1981]; People v Crawford, 54 AD3d961 [2008]), were permissible rhetorical comment (see People v Ashwal, 39NY2d at 109-110; People vWhitehurst, 70 AD3d 1057, 1058 [2010]; People v Williams, 52 AD3d 851, 851 [2008]), orconstituted harmless error (see People v Crimmins, 36 NY2d at 241-242;People v Hill, 286 AD2d 777, 778 [2001]). Dillon, J.P., Angiolillo, Leventhaland Lott, JJ., concur.