People v. Krivoi

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: People v. Krivoi, 917 N.Y.S.2d 273, 81 A.D.3d 978 (N.Y. App. Div. 2011)
• Decision Date: 22 February 2011
• Parties: The PEOPLE, etc., respondent, v. Marat KRIVOI, appellant.

917 N.Y.S.2d 273

81 A.D.3d 978

The PEOPLE, etc., respondent,

v.Marat KRIVOI, appellant.

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

Feb. 22, 2011.

Langone & Associates, PLLC, Levittown, N.Y. (Richard M. Langone of counsel), for appellant, and appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Appeal by the defendant from a judgment of the SupremeCourt, Kings County(Tomei, J.), rendered January 31, 2008, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the accomplice testimony upon which the People relied to establish his participation in the murder of Thien Diep was insufficiently corroborated and, therefore, insufficient to support that conviction. This contention is without merit ( see CPL 60.22[1]; People v. Caban, 5 N.Y.3d 143, 155, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Besser, 96 N.Y.2d 136, 143-144, 726 N.Y.S.2d 48, 749 N.E.2d 727; People v. Breland, 83 N.Y.2d 286, 294, 609 N.Y.S.2d 571, 631 N.E.2d 577; People v. Smith, 55 N.Y.2d 945, 946-947, 449 N.Y.S.2d 177, 434 N.E.2d 246; People v. Montefusco, 44 A.D.3d 879, 880, 843 N.Y.S.2d 671).

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 establish the defendant's guilt with regard to the murder of Thien Diep beyond a reasonable doubt. 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, we are satisfied that the verdict of guilt with regard to the murder of Thien Diep 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).

Under the circumstances of this case, the Supreme Court erroneously admitted into evidence the redacted statements made by the codefendant ( see Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177). However, we are satisfied that the evidence of the defendant's guilt, without reference to the error, was overwhelming, and there is no reasonable possibility that the error might have contributed to the defendant's conviction. Thus, the error was harmless beyond a reasonable doubt ( see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's claim that the People committed a Brady violation ( see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) is dehors the record and not reviewable on direct appeal ( see People v. Williams, 34 A.D.3d 856, 857, 824 N.Y.S.2d 681). His contentions that the Supreme Court's jury charge regarding accomplice corroboration and the Supreme Court's instruction during his counsel's summation were not proper are unpreserved for appellate review ( see CPL 470.05[2] ). Similarly, the defendant failed toproperly preserve for appellate...