People v. DeRosa

• Citation: 560 N.Y.S.2d 215,165 A.D.2d 831
• Parties: The PEOPLE, etc., Respondent, v. Vincent DeROSA, Appellant.
• Decision Date: 17 September 1990
• Court: New York Supreme Court Appellate Division

Page 215

560 N.Y.S.2d 215

165 A.D.2d 831

The PEOPLE, etc., Respondent, v. Vincent DeROSA, Appellant.

Supreme Court, Appellate Division, Second Department.

Sept. 17, 1990.

Philip L. Weinstein, New York City (Eve Kessler, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Andrew Zwerling, of counsel), for respondent.

Before MANGANO, P.J., and THOMPSON, LAWRENCE and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Finnegan, J.), rendered July 29, 1988, convicting him of murder in the second degree, tampering with physical evidence, criminal possession of a weapon in the fourth degree, failing to report a death without medical attendance, and burying a body without a permit, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence 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), and giving it the benefit of every reasonable inference to be drawn therefrom, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Although the evidence was wholly circumstantial, a determination of guilt flows naturally from the facts proven and excludes to a moral certainty every reasonable hypothesis of innocence (see, People v. Marin, 65 N.Y.2d 741, 492 N.Y.S.2d 16, 481 N.E.2d 556; People v. Benzinger, 36 N.Y.2d 29, 364 N.Y.S.2d 855, 324 N.E.2d 334). The conflicting expert testimony regarding the source of certain markings on the skeletal remains of the victim presented an issue of credibility for the jury, which was resolved in favor of the People. Upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (CPL 470.15[5].

We further find that the maximum sentence imposed on the murder conviction was neither harsh nor excessive under the circumstances of this case (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). In this regard, we note that the defendant had previously been found guilty of manslaughter in the first degree for killing a 4-year-old girl and secreting the body in his mother's home, and that soon after the defendant's release from parole on that conviction, he committed this homicide.