| People v Gomez |
| 2016 NY Slip Op 03010 [138 AD3d 1017] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Juan Gomez, Also Known as Titanic,Appellant. |
Robert C. Mitchell, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Rosalind C. Gray of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Ambro, J.), rendered June 13, 2014, convicting him of murder in the second degree andconspiracy in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05 [2]; People v Guzman, 134 AD3d 852, 853 [2015]; People v Mazyck, 118 AD3d728, 728 [2014]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Contrary tothe defendant's contention, the testimony of the main prosecution witness was notincredible as a matter of law (see People v McClough, 135 AD3d 880 [2016]; Peoplev Davis, 299 AD2d 420, 422 [2002]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the factfinder'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant failed to preserve for appellate review his contention that he wasdeprived of his right to a fair trial by the prosecutor's alleged violation of the CountyCourt's Molineux ruling (see People v Molineux, 168 NY 264 [1901]; People v Laverpool, 52 AD3d622, 623 [2008]; People vOlibencia, 45 AD3d 607, 609 [2007]; People v Ingram, 258 AD2d 533[1999]). In any event, the prosecutor did not violate the court's Molineux ruling(see People v Rock, 65AD3d 558, 559 [2009]). In addition, the defendant did not object to theMolineux charge as given, and thus his claim that the charge was inadequate isunpreserved for appellate review (see CPL 470.05 [2]; People v Dei, 2 AD3d1459, 1460 [2003]), and, in any event, without merit.
The County Court properly denied the defendant's application for a missing witnesscharge regarding a New York State Police investigator. A party seeking a missingwitness charge "must sustain an initial burden of showing that the opposing party hasfailed to call a witness who [*2]could be expected to haveknowledge regarding a material issue in the case and to provide testimony favorable tothe opposing party" (People v Macana, 84 NY2d 173, 177 [1994]). Here, thedefendant failed to make a prima facie showing that the uncalled witness could beexpected to have knowledge about a material issue in the case or that his testimonywould be favorable to the People (see People v Salmon, 291 AD2d 512, 512-513[2002]; People v Moore, 268 AD2d 491 [2000]).
The defendant's contentions that the County Court committed reversible error whenit referred a witness's accomplice status to the jury for resolution as a question of fact,and that the prosecution failed to present sufficient nonaccomplice testimony tocorroborate the witness's testimony, are unpreserved for appellate review (seeCPL 470.05 [2]; People vArgentina, 27 AD3d 569, 570 [2006]; People v Roque, 291 AD2d 417[2002]). In any event, the court properly instructed the jury that the issue of whether thewitness was an accomplice was a question of fact, inasmuch as competing inferencesregarding his complicity could reasonably have been drawn from the evidence adduced atthe trial (see People vVisich, 57 AD3d 804, 806 [2008]).
The defendant failed to preserve for appellate review his contention that he wasdeprived of his right to a fair trial due to remarks the prosecutor made on summation(see CPL 470.05 [2]). In any event, the challenged remarks either constituted faircomment on the evidence and the inferences to be drawn therefrom (see People vPatterson, 121 AD2d 406 [1986]), were within the broad bounds of rhetoricalcomment permissible in closing arguments and constituted fair response to argumentsmade by defense counsel in summation (see People v Rios, 105 AD3d 873 [2013]), or were not soderogatory as to deprive the defendant of a fair trial (see People v Tavarez, 135 AD3d 973 [2016]; People v Caba, 101 AD3d896 [2012]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Eng, P.J., Mastro, Leventhal and Miller, JJ., concur.