People v. Herb

• Citation: 2013 N.Y. Slip Op. 06590,110 A.D.3d 829,972 N.Y.S.2d 668
• Parties: The PEOPLE, etc., respondent, v. Corey HERB, appellant.
• Decision Date: 09 October 2013
• Court: New York Supreme Court Appellate Division

110 A.D.3d 829
972 N.Y.S.2d 668
2013 N.Y. Slip Op. 06590

The PEOPLE, etc., respondent,
v.
Corey HERB, appellant.

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

Oct. 9, 2013.

[972 N.Y.S.2d 669]

Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

Appeal by the defendant from a judgment of Supreme Court, Kings County (Chun, J.), rendered August 17, 2011, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his contention that the conviction of manslaughter in the first degree was not supported by legally sufficient evidence ( seeCPL 470.05[2] ). In any event, 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), we find that it was legally sufficient to prove his guilt of that crime beyond a reasonable doubt.

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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. denied542 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). Contrary to the defendant's contention, the testimony given by the two main prosecution witnesses afforded a credible foundation upon which the jury could find the defendant guilty of manslaughter in the first degree. One witness testified that he observed the codefendant hand a gun to the defendant on Flatbush Avenue, and about an hour later, observed the defendant, the codefendant, and a third man walking together on Flatbush Avenue and turning onto Midwood Street. Less than a minute later, the witness heard a gunshot. The second witness observed the defendant and two men walking on Midwood Street, where they confronted and argued with the victim and his two friends. From about 12 to 15 feet away,

[972 N.Y.S.2d 670]

the second witness observed the defendant pull out a gun from the back of his belt or pants. The witness turned and...