| People v Creekmur |
| 2016 NY Slip Op 01859 [137 AD3d 1052] |
| March 16, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Charles Creekmur, Appellant. |
Steven A. Feldman, Uniondale, NY (Arza Feldman of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and JacquelineRosenblum of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Berkowitz, J.), rendered September 17, 2014, convicting him of manslaughter in thefirst degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to disprove thedefendant's justification defense beyond a reasonable doubt (see generally People v Suphal,7 AD3d 547 [2004]; Peoplev Velez, 1 AD3d 290 [2003]; People v Centeno, 291 AD2d 265 [2002];People v Torres, 182 AD2d 788 [1992]; People v Varela, 164 AD2d 924[1990]; People v Rosado, 123 AD2d 649 [1986]). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight 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 testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's argument that certain questions posed by the prosecutor during thedirect examination of one of the People's witnesses and during the cross-examination ofthe defendant were improper is partially unpreserved for appellate review (seeCPL 470.05 [2]; People vAguilar, 79 AD3d 899 [2010]; People v Wright, 62 AD3d 916 [2009]). In any event, to theextent that the prosecutor's questions were improper, the prosecutor's misconduct was"not so flagrant or pervasive as to deny the defendant a fair trial" (People vWright, 62 AD3d at 917 [internal quotation marks omitted]; see People v Credle, 124 AD3d792 [2015]; People vAguilar, 79 AD3d 899 [2010]).
Similarly, the defendant's contentions that the Supreme Court improperly failed toconduct a hearing to determine the amount of restitution, and improperly failed toconsider the defendant's ability to pay restitution, are unpreserved for appellate review(see CPL 470.05 [2];People v Winslow, 100 AD3d 1031 [2012]; People v Isaacs, 71 AD3d 1161 [2010]; People v Golgoski, 40 AD3d1138 [2007]), and, in any event, without merit (see People v Baxter, 102 AD3d 805 [2013]; People v Harris, 72 AD3d1110 [2010]; People vBaez, 52 AD3d 840 [2008]; People v Madrid, 52 AD3d 532 [2008]). Dillon, J.P.,Dickerson, Austin and Duffy, JJ., concur.