| People v Mairena |
| 2017 NY Slip Op 04298 [150 AD3d 1267] |
| May 31, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David Mairena, Appellant. |
[Recalled and vacated, see 160 AD3d 986.]
Lynn W. L. Fahey, New York, NY (Michael Arthus of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M.Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano,Jr., J.), rendered July 24, 2015, convicting him of manslaughter in the first degree and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2];People v Hawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), thedefendant's contention that the People failed to disprove his justification defense beyond areasonable doubt is without merit. The evidence adduced at trial established that the defendantstabbed the decedent with a box cutter, which caused the decedent to bleed to death. Though thedecedent was armed with a machete earlier in the parties' altercation, he was no longer carryingthe machete at the time the defendant stabbed him. Moreover, there was no testimony that thedefendant saw the decedent brandishing the machete immediately before he approached thedecedent to stab him. Rather, the evidence indicates that the decedent had walked away from thedefendant after their initial altercation, that the decedent had abandoned his machete at that point,and that the defendant could have retreated from the situation by also walking away. Viewingthis evidence in the light most favorable to the prosecution (see id.), we find that it waslegally sufficient to establish the elements of manslaughter in the first degree and to disprove thedefense of justification beyond a reasonable doubt (see People v Clarke, 11 AD3d 554 [2004]; People vLittlejohn, 307 AD2d 976, 976 [2003]; People v Hall, 220 AD2d 615 [1995]).Moreover, in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (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 verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the Supreme Court's charge, when viewed [*2]as a whole, properly instructed the jury as to the defense ofjustification, and was a correct statement of the law (see People v Fields, 87 NY2d 821,823 [1995]; People v Bogan, 78AD3d 855, 855-856 [2010]).
Finally, the defendant's contention that the prosecutor's summation remarks constitutedreversible error because he allegedly vouched for the credibility of witnesses, made inflammatorycomments, misled the jury about the evidence, and denigrated the defense is unpreserved forappellate review. The defendant made only a general objection, failed to request curativeinstructions, and did not timely move for a mistrial on this ground (see CPL 470.05 [2];People v Balls, 69 NY2d 641, 642 [1986]; People v Salnave, 41 AD3d 872, 874 [2007]). In any event, thecomments alleged to be prejudicial were either fair comment on the evidence (see People vAshwal, 39 NY2d 105 [1976]), responsive to arguments and theories presented in thedefense summation (see People v Galloway, 54 NY2d 396 [1981]), or harmless in lightof the overwhelming evidence of the defendant's guilt (see People v Crimmins, 36 NY2d230, 241-242 [1975]; People v Hill, 286 AD2d 777, 778 [2001]). Moreover, theprosecutor's summation comments that the defendant's actions were unjustified and that thePeople's witnesses did not conspire against him did not impermissibly shift the burden of proof.The challenged remarks were responsive to the defense counsel's summation (see People v Moore, 29 AD3d 825,825-826 [2006]). Mastro, J.P., Sgroi, LaSalle and Connolly, JJ., concur.