| People v Liu |
| 2015 NY Slip Op 06520 [131 AD3d 547] |
| August 12, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nelson Liu, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and SethM. Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered December 22, 2011, convicting him of manslaughter in the firstdegree, attempted assault in the first degree (two counts), assault in the second degree(two counts), and criminal possession of a weapon in the fourth degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to disprove hisjustification defense beyond a reasonable doubt is not preserved for appellate review (see People v Joseph, 74 AD3d840, 840 [2010]; cf. People v Padro, 75 NY2d 820, 821 [1990]; People v Boley, 116 AD3d965, 966 [2014]). In any event, the defendant's contention is without merit. Theevidence presented at trial, viewed in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620, 621 [1983]), was legally sufficient to prove beyonda reasonable doubt that the defendant was not justified in using deadly physical force(see Penal Law § 35.20 [1], [2]; People v Pickens, 60 AD3d 699, 701 [2009]). Thedefendant further contends that the verdict was against the weight of the evidence. Thatcontention, too, is without merit. In fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348-349 [2007]), we nevertheless accord great deference to the opportunity ofthe finder of fact to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the jury'srejection of the defendant's justification defense and its verdict of guilt were not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633, 643 [2006]; People v O'Keefe, 105 AD3d 1062, 1063 [2013]; People v Terrero, 31 AD3d672 [2006]).
The defendant's claim that the prosecutor deprived him of a fair trial by virtue ofimproper summation comments is not preserved for appellate review (see CPL470.05 [2]; People vHoward, 120 AD3d 1259, 1260 [2014]). In any event, the challenged remarkswere fair comment upon the evidence, were responsive to the defense counsel'ssummation, or otherwise did not deprive the defendant of a fair trial (see People v Rivera, 128 AD3d857 [2015]; People vSaunders, 127 AD3d 1111, 1112 [2015]). Defense counsel's failure to object tothe prosecutor's summation remarks did not amount to ineffective assistance of counsel(see People v Saunders, 127 AD3d at 1112).
[*2] The sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80 [1982]). Rivera, J.P., Balkin, Miller and LaSalle, JJ.,concur.