People v. Bey

• Decision Date: 30 March 2010
• Citation: 898 N.Y.S.2d 189,71 A.D.3d 1156
• Parties: The PEOPLE, etc., respondent, v. Yusef N. BEY, appellant.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 189

71 A.D.3d 1156

The PEOPLE, etc., respondent,

v.Yusef N. BEY, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 30, 2010.

Lynn W.L. Fahey, New York, N.Y. (Sarah J. Berger of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Ushir Pandi of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ.

Appeal by the defendant from a judgment of the Supreme Court, QueensCounty(Aloise, J.), rendered January 3, 2008, convicting him of murder in the second degree, attempted murder in the second degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his conviction of attempted murder in the second degree is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt ( see People v. Cartwright, 61 A.D.3d 695, 877 N.Y.S.2d 136; People v. Sayles, 57 A.D.3d 698, 871 N.Y.S.2d 178). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, the trial court properly refused to instruct the jury with respect to manslaughter in the first degree as a lesser-included offense of intentional murder ( see CPL 300.50; People v. Butler, 84 N.Y.2d 627, 620 N.Y.S.2d 775, 644 N.E.2d 1331). Under no reasonable view of the evidence could the jury have found that the defendant committed the lesser offense but not the greater ( see People v. Alexis, 65 A.D.3d 1160, 885 N.Y.S.2d 340; People v. Rivera, 2 A.D.3d 542, 767 N.Y.S.2d 881; People v. Collins, 290 A.D.2d 457, 458, 736 N.Y.S.2d 109).

The defendant's contention that the prosecutor violated the unsworn witness rule while questioning the rebuttal witness and during summation is unpreserved for appellate review and, in any event, is without merit ( see CPL 470.05[2];People v. Tapper, 64 A.D.3d 620, 621, 883 N.Y.S.2d 250; People v. Ferguson, 15 A.D.3d 675, 676, 790 N.Y.S.2d 237). Furthermore, the defendant's contention that various comments made by the prosecutor during his summation were improper and deprived him of a fair trial is unpreserved for appellate review, as the defendant either did not object to the remarks at issue or made only general one-word objections ( see CPL 470.05[2]; People v. Clarke, 65 A.D.3d 1055, 1056, 887 N.Y.S.2d 586; People v. Philbert, 60 A.D.3d 698, 699, 874 N.Y.S.2d 540). In any event, most of the challenged remarks in the prosecutor's summation constituted fair comment on the evidence or were responsive to the arguments presented in defense counsel's summation ( see People v. Clarke, 65 A.D.3d 1055, 1056, 887 N.Y.S.2d 586; People v. Philbert, 60 A.D.3d at 699, 874 N.Y.S.2d 540). To the extent that some of the remarks...