| People v Mairs |
| 2018 NY Slip Op 00310 [157 AD3d 818] |
| January 17, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Oneil Mairs, Appellant. |
Paul Skip Laisure, New York, NY (William Kastin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Danielle S. Fenn of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County(Aloise, J.), rendered December 16, 2014, and (2) an amended judgment of the same courtrendered January 7, 2015, convicting him of manslaughter in the second degree, criminalpossession of a weapon in the second degree, and reckless endangerment in the first degree, upona jury verdict, and imposing sentence.
Ordered that the appeal from the judgment is dismissed, as the judgment was superseded bythe amended judgment; and it is further,
Ordered that the amended judgment is affirmed.
The defendant was convicted of manslaughter in the second degree (Penal Law§ 125.15 [1]), criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]), and reckless endangerment in the first degree (Penal Law§ 120.25), arising out of the shooting death of a young woman at a house party inQueens.
"The statutory definition of accessory liability provides that '[w]hen one person engages inconduct which constitutes an offense, another person is criminally liable for such conduct when,acting with the mental culpability required for the commission thereof, he solicits, requests,commands, importunes, or intentionally aids such person to engage in such conduct' "(People v Carpenter, 138 AD3d1130, 1131 [2016], quoting Penal Law § 20.00; see People v Scott, 25 NY3d 1107,1110 [2015]). "Inasmuch as the statute requires that the accomplice act with the mentalculpability required for the commission of the underlying crime, an accomplice must have ashared intent, or 'community of purpose' with the principal" (People v Carpenter, 138AD3d at 1131, quoting People v Cabey, 85 NY2d 417, 421 [1995]; see People vScott, 25 NY3d at 1110).
The defendant's current challenge to the legal sufficiency of the evidence is unpreserved forappellate review, since he failed to advance his present arguments as a basis for [*2]dismissal in the trial court (see CPL 470.05 [2]; People vGray, 86 NY2d 10 [1995]; People vKearney, 25 AD3d 622, 623 [2006]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish beyond a reasonable doubt the defendant's guilt ofmanslaughter in the second degree, criminal possession of a weapon in the second degree, andreckless endangerment in the first degree, based on an acting-in-concert theory (see PenalLaw §§ 20.00, 125.15 [1]; 265.03 [1] [b]; 120.25). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the factfinder's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]; People v Rizzo, 142 AD3d1187 [2016]).
The defendant's contention that he was deprived of a fair trial when the Supreme Courtadmitted into evidence certain allegedly inflammatory photographs is without merit.Photographic evidence "should be excluded only if its sole purpose is to arouse the emotions ofthe jury and to prejudice the defendant" (People v Pobliner, 32 NY2d 356, 370 [1973];see People v Stevens, 76 NY2d 833, 835 [1990]; People v Thomas, 99 AD3d 737, 738 [2012]). When allegedlyinflammatory photographs are relevant to a material issue at trial, the court has broad discretionto determine whether the probative value of the photographs outweighs any prejudice to thedefendant (see People v Stevens, 76 NY2d at 835; People v Thomas, 99 AD3d at738). Here, the photographs at issue were relevant to material issues in the case, and the court didnot improvidently exercise its discretion in admitting them into evidence. Contrary to thedefendant's contentions, the photographs were not so inflammatory as to have deprived him of afair trial.
The defendant's contentions regarding alleged prosecutorial misconduct during summationare without merit. The prosecutor's comments were either fair comment on the evidence and thereasonable inferences to be drawn therefrom or responsive to defense counsel's summation, orotherwise did not deprive the defendant of a fair trial (see People v Ashwal, 39 NY2d105, 109-110 [1976]; People vKing, 144 AD3d 1176, 1176-1177 [2016]; People v Nanand, 137 AD3d 945, 947-948 [2016]; People v Willis, 122 AD3d 950[2014]; People v Hoke, 111 AD3d959 [2013]; People vMcGowan, 111 AD3d 850 [2013]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Hall, J.P., Cohen, Barros and Christopher, JJ., concur.