| People v Fafone |
| 2015 NY Slip Op 05359 [129 AD3d 1667] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJoseph R. Fafone, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson ofcounsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John Lewis DeMarco, J.),rendered June 14, 2012. The judgment convicted defendant, after a nonjury trial, ofmanslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following anonjury trial of manslaughter in the first degree (Penal Law § 125.20 [1]).Contrary to defendant's contention, County Court did not abuse its discretion in refusingto admit in evidence the supporting deposition of a witness who did not appear at trialinasmuch as the content of the supporting deposition was cumulative to other trialtestimony (see People vPetty, 7 NY3d 277, 286-287 [2006]).
To the extent that defendant contends that the evidence is legally insufficient tosupport the conviction because the People failed to disprove the defense of justificationbeyond a reasonable doubt, we conclude that such contention is unpreserved for ourreview inasmuch as defendant failed to move for a trial order of dismissal on that ground(see People v Bakerx, 114AD3d 1244, 1245 [2014], lv denied 22 NY3d 1196 [2014]). To the extentthat defendant preserved his challenge to the legal sufficiency of the evidence, weconclude that the evidence is legally sufficient to support the conviction of manslaughterin the first degree (see id.). Viewing the evidence in light of the elements of thecrime in this nonjury trial (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we further conclude that theverdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]).
The sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Sconiers, Valentino and DeJoseph, JJ.