| People v Barill |
| 2014 NY Slip Op 05735 [120 AD3d 951] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSean Barill, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered August 15, 2012. The judgment convicted defendant, upon a jury verdict,of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1] [intentionalmurder]). Defendant failed to preserve for our review his challenge to the legalsufficiency of the evidence inasmuch as he failed to renew his motion for a trial order ofdismissal after presenting evidence (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]). In any event, defendant's challenge is withoutmerit (see People v Wade, 276 AD2d 406, 406 [2000], lv denied 96NY2d 788 [2001]; see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Contrary to defendant's further contention, viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). Specifically, we conclude that the jury "did not fail togive the evidence the weight it should be accorded in rejecting defendant's justificationdefense" and thus that the verdict is not against the weight of the evidence in that respect(People v Wolf, 16 AD3d1167, 1168 [2005]; see generally Bleakley, 69 NY2d at 495). We note thatdefendant inflicted 41 knife wounds on the victim, there was little sign of a strugglealthough the victim's blood was found throughout defendant's apartment, and defendanthad only small cuts on his fingers that were consistent with his hand slipping on a knifeblade as he stabbed the victim, as well as a few scratches on his back. Furthermore,defendant took preliminary steps to conceal the crime by gathering some of the weaponsand the clothing he wore during the incident, and bundling those items in a rug.Defendant also wiped the victim's blood off some of the knives, took a shower, changedhis clothes and fled the scene, and he then took another shower and had his girlfriend cuthis hair. Contrary to defendant's contention that the jury should have credited histestimony that his actions were justified, " '[r]esolution of issues of credibility, aswell as the weight to be accorded to the evidence presented, are primarily questions to bedetermined by the jury, which saw and heard the witnesses' " (People v Sorrentino, 12 AD3d1197, 1197-1198 [2004], lv denied 4 NY3d 748 [2004]).
Defendant's contentions with respect to the integrity of the grand jury proceedingsare "not reviewable on appeal because the grand jury minutes are not included in therecord on appeal" (People vDilbert, 1 AD3d 967, 967-968 [2003], lv denied 1 NY3d 626 [2004]; see generally People vHawkins, 113 AD3d 1123, 1125 [2014], lv denied 22 NY3d 1156[2014]; People v Lane, 47AD3d 1125, 1127 n 3 [2008], lv denied 10 NY3d 866 [2008]; People vBrooks, 163 AD2d 864, 865 [1990], lv denied 76 NY2d 984 [1990]).
We reject defendant's further contention that he was deprived of a fair trial by [*2]prosecutorial misconduct. Defendant contends, inter alia,that the prosecutor impermissibly cross-examined him regarding his interest in theoutcome of the trial. It is well settled, however, that a defendant is an interested witnessas a matter of law (see e.g.People v Newman, 107 AD3d 827, 827-828 [2013]; People v Wilson, 93 AD3d483, 484 [2012], lv denied 19 NY3d 978 [2012]; People v Williams, 81 AD3d993, 994 [2011], lv denied 16 NY3d 901 [2011]), and the prosecutor'scross-examination merely established that fact. Defendant failed to preserve for ourreview his contention that, on summation, the prosecutor "improperly expressed hispersonal belief" with respect to the evidence (People v Morris, 267 AD2d 1032,1033 [1999], lv denied 95 NY2d 800 [2000]), and in any event that contention iswithout merit. Defendant's additional contentions with respect to prosecutorialmisconduct are also without merit.
Contrary to defendant's further contention, Supreme Court properly denied hisrequest for an intoxication charge. Defendant failed to present evidence "tending tocorroborate his claim of intoxication, such as the number of drinks, the period of timeduring which they were consumed, the lapse of time between consumption and the eventat issue, whether he consumed alcohol on an empty stomach, whether his drinks werehigh in alcoholic content, and the specific impact of the alcohol upon his behavior ormental state" (People v Gaines, 83 NY2d 925, 927 [1994]). Consequently,although "there was evidence of defendant's alcohol . . . consumption, therewas no evidence that could raise a reasonable doubt as to whether his faculties were soimpaired at the time of the crime that he could not have formed the requisite intent" (People v Malaussena, 44 AD3d349, 349 [2007], affd 10 NY3d 904 [2008]).
Defendant further contends that the court erred in denying his request for a missingwitness charge with respect to his girlfriend, who arrived at the scene of the crime afterthe stabbing. We reject that contention. "There are three preconditions to a missingwitness instruction[.] First, the witness's knowledge must be material to the trial. Second,the witness must be expected to give noncumulative testimony favorable to the partyagainst whom the charge is sought . . . Third, the witness must be availableto that party" (People vHall, 18 NY3d 122, 131 [2011]; see People v Gonzalez, 68 NY2d 424,427 [1986]). The initial burden of establishing entitlement to the charge rests upon theparty seeking the instruction (see Gonzalez, 68 NY2d at 427-428; see generally People v Thomas,56 AD3d 1241, 1241 [2008]; People v Wade, 38 AD3d 1315, 1316 [2007], lvdenied 8 NY3d 992 [2007]). Here, in the absence of any evidence establishing thatthe witness was available to the People or would testify in their favor, "[d]efendant failedto meet his burden of establishing that he was entitled to a missing witness charge withrespect to" his girlfriend (Wade, 38 AD3d at 1316).
Even assuming, arguendo, that defendant initially made a sufficient motion for aDunaway hearing merely by mentioning the name of the case in his request for aHuntley hearing (cf. People v Jones, 95 NY2d 721, 725-729 [2001]), weconclude that defendant abandoned that request because he "failed to seek a ruling onthose parts of his omnibus motion concerning the alleged [Dunaway] violation. . . or to object to the admission of his statements in evidence at trial. . . on those grounds" (People v Nix, 78 AD3d 1698, 1699 [2010], lv denied16 NY3d 799 [2011], cert denied 565 US &mdash, 132 S Ct 157 [2011]; see People v Wright, 107AD3d 1398, 1400 [2013]; People v Smith, 13 AD3d 1121, 1122 [2004], lv denied4 NY3d 803 [2005]; see generally People v Rodriguez, 50 NY2d 553, 557[1980]).
The sentence is not unduly harsh or severe. We have considered defendant'sremaining contentions and conclude that they are without merit.Present—Scudder, P.J., Smith, Carni, Lindley and Whalen, JJ.