| People v Cherry |
| 2015 NY Slip Op 02980 [127 AD3d 879] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eric Cherry, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant,and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Sharon Y. Brodt of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Queens County(Lasak, J.), both rendered June 13, 2012, convicting him of manslaughter in the firstdegree under Indictment No. 2655/08, and assault in the second degree under IndictmentNo. 547/11, upon a jury verdict, and imposing sentences.
Ordered that the judgments are affirmed.
The defendant contends, in his main brief, that the evidence was legally insufficientto support his conviction of manslaughter in the first degree because the People failed toestablish that he intended to cause serious physical injury to the decedent. However,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthat the defendant intended to cause serious physical injury to the decedent (see People v Baranov, 121AD3d 706 [2014]; People vMeacham, 84 AD3d 1713, 1714 [2011]; People v Beckingham, 57 AD3d 1098, 1098-1099 [2008];People v Buss, 44 AD3d634, 635 [2007], affd 11 NY3d 553 [2008]; People v Luck, 294AD2d 618, 620 [2002]).
In addition, in his pro se supplemental brief, the defendant argues that his convictionof manslaughter in the first degree was based upon legally insufficient evidence becausethe People failed to establish that his conduct was the legal cause of the decedent's death.Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d at 621), we find that it was legally sufficient to establish that thedefendant's actions were a "sufficiently direct cause" of the decedent's death (People v DaCosta, 6 NY3d181, 184 [2006] [internal quotation marks omitted]; see Matter of AnthonyM., 63 NY2d 270, 280-281 [1984]; People v Aponte, 82 Misc 2d 283, 288[Sup Ct, Kings County 1975).
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]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). [*2]Uponreviewing the record here, we are satisfied that the verdict of guilt on the count chargingmanslaughter in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, raised in his main brief, the Supreme Courtdid not err in refusing to give an intoxication charge to the jury (see Penal Law§ 15.25). Viewing the evidence in the light most favorable to the defendant(see People v Gaines, 83 NY2d 925, 927 [1994]), the record did not warrant thecharge (see People v Beaty,22 NY3d 918, 921 [2013]; People v Gaines, 83 NY2d at 927; People v Oddone 89 AD3d868, 870 [2011], revd on other grounds 22 NY3d 369 [2013]; People vCintron, 74 AD2d 457, 462 [1980]).
The defendant's contention in his main brief that the prosecutor engaged inmisconduct in cross-examining the defense witnesses is unpreserved for appellate reviewsince he failed to raise a timely and specific objection to any of the questions he nowchallenges (see CPL 470.05 [2]; People v Gill, 54 AD3d 965 [2008]; People vBooth, 265 AD2d 485 [1999]). In any event, the challenged questions do not warrantreversal. The prosecutor's questions during cross-examination, for the most part, were notimproper (see People vQuezada, 116 AD3d 796, 797 [2014]; People v Damon, 78 AD3d 860 [2010]; People vOverlee, 236 AD2d 133, 139 [1997]). To the extent those questions were improper,they did not rise to the level of egregious misconduct that would have deprived thedefendant of a fair trial (see People v Quezada, 116 AD3d at 797).
The defendant's contention in his pro se supplemental brief that the jury charge oncausation was biased in favor of the People is unpreserved for appellate review(see CPL 470.05 [2]; People v Davis, 112 AD3d 959, 961 [2013]), and, in anyevent, without merit (see People v DaCosta, 6 NY3d at 184; Matter ofAnthony M., 63 NY2d at 280; CJI2d[NY] Cause of Death).
The defendant's contention that a mode of proceedings error occurred when theSupreme Court did not comply precisely with the requirements of People vO'Rama (78 NY2d 270 [1991]; CPL 310.30), in responding to a jury note requestinga rereading of the court's original charge on reasonable doubt is without merit (see People v Alcide, 21 NY3d687, 694 [2013]; People v Starling, 85 NY2d 509, 516 [1995]; People vDeRosario, 81 NY2d 801, 803 [1993]; cf. People v Walston, 23 NY3d 986, 989 [2014]). Contraryto the defendant's contention, it is evident from the record that the court fulfilled its "coreresponsibilities" in responding to the jury's note (People v Walston, 23 NY3d at989).
The defendant failed to preserve for appellate review his contention in his main briefthat the sentences the Supreme Court imposed improperly penalized him for exercisinghis right to a jury trial since he failed to set forth the issue on the record at the sentencingproceeding (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Thompson, 119AD3d 966, 968 [2014]). In any event, this contention is without merit (see People v Seymore, 106AD3d 1033, 1034 [2013]; People v Romero, 101 AD3d 906, 907 [2012]; People v Garcia, 46 AD3d573, 574 [2007]).
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Chambers, Miller and Duffy, JJ., concur.