People v. Lavayen

• Decision Date: 26 July 1993
• Citation: 602 N.Y.S.2d 548,195 A.D.2d 609
• Parties: The PEOPLE, etc., Respondent, v. Marco LAVAYEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 548

602 N.Y.S.2d 548

195 A.D.2d 609

The PEOPLE, etc., Respondent, v. Marco LAVAYEN, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

July 26, 1993.

Philip L. Weinstein, New York City (Susan J. Horwitz, of counsel), for appellant, and appellant pro se.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Carol Teague Schwartzkopf, and Jay L. Weiner, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered November 28, 1990, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the prosecution failed to prove his guilt beyond a reasonable doubt of the offense of depraved mind murder (see, Penal Law § 125.25[2]. Viewing the circumstantial evidence in the light most favorable to the prosecution, 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. The facts from which the inference of guilt is drawn, when perceived as a whole, are inconsistent with the defendant's innocence and exclude to a moral certainty every reasonable hypothesis other than guilt (see, People v. Lewis, 64 N.Y.2d 1111, 490 N.Y.S.2d 166, 479 N.E.2d 802; People v. Benzinger, 36 N.Y.2d 29, 364 N.Y.S.2d 855, 324 N.E.2d 334; cf., People v. Giuliano, 65 N.Y.2d 766, 492 N.Y.S.2d 939, 482 N.E.2d 557). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5].

The defendant's contentions with respect to the propriety of certain comments made by the prosecutor are unpreserved for appellate review (see, CPL 470.05[2]; People v. Oliver, 63 N.Y.2d 973, 975, 483 N.Y.S.2d 992, 473 N.E.2d 242). In any event, the comments in question constituted reasonable conclusions fairly drawn from the testimony and ballistics evidence adduced at trial (see, People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564).

There is no support in the record for the defendant's contention, set forth in his supplemental pro se brief, that he was denied the effective assistance of counsel due to the defense counsel's failure to interview and call two potential eyewitnesses (see, People v. Nieves, 144 A.D.2d 588, 589, 534 N.Y.S.2d 431; People v. Leonard, 102 A.D.2d 857...