People v. Dellemand

• Decision Date: 06 June 1994
• Parties: The PEOPLE, etc., Respondent, v. Gaivard DELLEMAND, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 195

613 N.Y.S.2d 195

205 A.D.2d 551

The PEOPLE, etc., Respondent, v. Gaivard DELLEMAND, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 6, 1994.

Sharon Weintraub Dashow and George Sheinberg, Brooklyn, for appellant (one brief filed).

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Monique Ferrell, and Hilda Mortensen-Hoyt, of counsel), for respondent.

Before ROSENBLATT, J.P., and MILLER, LAWRENCE and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Huttner, J.), rendered September 11, 1990, as amended January 9, 1991, convicting him of murder in the second degree 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 adduced at the trial was legally insufficient to establish his guilt of depraved indifference murder (see, Penal Law § 125.25[2] is unpreserved for appellate review (see, CPL 470.05[2]; People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9). In any event, viewing the evidence adduced at the trial in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of depraved indifference murder beyond a reasonable doubt (see, People v. Roe, 74 N.Y.2d 20, 25, 544 N.Y.S.2d 297, 542 N.E.2d 610; People v. Guetis, 189 A.D.2d 692, 592 N.Y.S.2d 712). The defendant, sitting approximately 10 feet away from the victim, aimed his gun at the victim's chest and pulled the trigger three times. The third time the defendant pulled the trigger, the gun fired a bullet into the victim's chest, causing the victim's death. Moreover, resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily issues to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). Its determination should be accorded great weight on appeal and should not be disturbed unless it is clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).

Contrary to the defendant's contention, the court properly admitted into evidence two photographs, one depicting the victim's fully-clothed corpse at the crime scene, and the other depicting the fatal bullet wound to the victim's chest. The photographs were admitted to illustrate the testimony of the People's eyewitnesses and the testimony of the doctor who had performed the autopsy on the victim. There is no indication in the record that the photographs were admitted for the sole purpose of arousing the emotions of the jury (see, People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178; People v. Pobliner, 32 N.Y.2d 356, 369, 345...