| People v Villanueva |
| 2016 NY Slip Op 01355 [136 AD3d 1068] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v George Villanueva, Appellant. |
Stephen N. Preziosi, New York, NY, for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andMorgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered May 23, 2012, convicting him of aggravated manslaughter in thefirst degree and aggravated criminal contempt, upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the facts, by reducing the defendant'sconviction of aggravated manslaughter in the first degree to aggravated manslaughter inthe second degree, and vacating the sentence imposed thereon; as so modified, thejudgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, forsentencing on the conviction of aggravated manslaughter in the second degree.
To the extent the defendant contends that the People did not present legally sufficientevidence that the defendant intended to cause serious physical injury to the victim, thatargument is unpreserved for appellate review because the defendant failed to move for atrial order of dismissal on the basis of that specific claim (see People v Hawkins, 11NY3d 484 [2008]; People vLewis, 96 AD3d 878 [2012]). In any event, viewing the evidence in the lightmost favorable to the People, we find that the evidence was legally sufficient to establish,beyond a reasonable doubt, the defendant's guilt of aggravated manslaughter in the firstdegree (see People v Leak,129 AD3d 745 [2015]; People v Pickens, 60 AD3d 699 [2009]).
However, 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 find that thedefendant's conviction of aggravated manslaughter in the first degree was against theweight of the evidence (seePeople v Santiago, 97 AD3d 704 [2012], affd 22 NY3d 740 [2014]; People v Haney, 85 AD3d816 [2011]; People vPickens, 60 AD3d 699 [2009]). The evidence, when properly weighed, did notprove, beyond a reasonable doubt, that the defendant intended to seriously injure thevictim (see Penal Law § 125.22). Rather, the evidence supports afinding that the victim's fatal head wound was recklessly caused by the defendant in themidst of a struggle (see People vHaney, 85 AD3d 816 [2011]; People v Pickens, 60 AD3d 699 [2009]). Accordingly, wemodify the judgment by reducing the conviction of aggravated manslaughter in the firstdegree to aggravated manslaughter in the second degree (see CPL 470.15 [5]),and remit the matter to the Supreme Court, Kings County, for sentencing on theconviction of aggravated manslaughter in the second degree.
[*2] The defendant's contention regarding the introductioninto evidence of prior statements used by the prosecution to impeach its own witness islargely unpreserved for appellate review (see People v Harris, 112 AD3d 738 [2013]; People v Jones, 25 AD3d724 [2006]; People vSolomon, 16 AD3d 701 [2005]). In any event, any error was harmless, as theevidence of the defendant's guilt of the lesser-included offense of aggravatedmanslaughter in the second degree and aggravated criminal contempt was overwhelming,and there is no significant probability that any error affected the outcome with respect tothese two crimes (see People vKirksey, 107 AD3d 825 [2013]; People v Solomon, 16 AD3d 701 [2005]). The defendant'scontention regarding the admission of evidence of certain prior uncharged crimes isunpreserved for appellate review and, in any event, without merit (see People v McFarlane, 106AD3d 836 [2013]; People vSanchez, 73 AD3d 1093 [2010]; People v Laverpool, 52 AD3d 622 [2008]). Balkin, J.P.,Hall, Roman and Maltese, JJ., concur.