People v. Moore

• Decision Date: 01 November 2011
• Citation: 89 A.D.3d 769,2011 N.Y. Slip Op. 07864,931 N.Y.S.2d 886
• Parties: The PEOPLE, etc., respondent,v.Diquawn MOORE, appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 769

931 N.Y.S.2d 886

2011 N.Y. Slip Op. 07864

The PEOPLE, etc., respondent,

v.Diquawn MOORE, appellant.

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

Nov. 1, 2011.

OPINION TEXT STARTS HERERichard J. Barbuto, Babylon, N.Y., for appellant.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Kathleen M. Egan of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered May 10, 2010, 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.

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 of manslaughter in the first degree ( see Penal Law § 125.20[1] ) beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt 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). The defendant's intent to cause serious physical injury ( see Penal Law § 10.00[10] ) may be inferred from his conduct and the surrounding circumstances ( see People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094; People v. Ramos, 80 A.D.3d 716, 716, 914 N.Y.S.2d 673, lv. granted 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102; People v. Spurgeon, 63 A.D.3d 863, 864, 880 N.Y.S.2d 707; see also People v. Gill, 20 A.D.3d 434, 434–435, 798 N.Y.S.2d 507; People v. Vella, 247 A.D.2d 642, 643, 669 N.Y.S.2d 236).

The defendant argues that the trial court erred in permitting a detective to testify regarding statements he heard the defendant make to another detective, who also testified at trial as to the defendant's statements. The defendant's contentions that this challenged testimony constituted inadmissible hearsay and improper bolstering are unpreserved for appellate review, as the defendant never objected to the testimony on these grounds ( see CPL 470. 05[2]; People v. Bryan, 50 A.D.3d 1049, 1050, 856 N.Y.S.2d 227; People v. Cruz, 31 A.D.3d 660, 661, 818 N.Y.S.2d 302; People v. Nanton, 18 A.D.3d 671, 672, 795 N.Y.S.2d 648; People v. Victor, 271 A.D.2d 556, 557, 705 N.Y.S.2d 659). In any event, the challenged testimony was properly admitted under the exception to the hearsay rule for party admissions ( see People v. Johnson, 93 N.Y.2d 254, 260, 689 N.Y.S.2d 689, 711 N.E.2d 967; People v. Valdes, 66 A.D.3d 925, 926, 886 N.Y.S.2d 623; People v. Nealy, 32 A.D.3d 400, 402, 819 N.Y.S.2d 106), and did not constitute improper bolstering ( see People v. Spicola, 16 N.Y.3d 441, 452–453, 922 N.Y.S.2d 846, 947 N.E.2d 620, cert. denied ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2011 WL 3047717, 2011 U.S. LEXIS 7335 [US]; People v. Buie, 86 N.Y.2d 501, 510–511, 634 N.Y.S.2d 415, 658 N.E.2d 192).

The defendant's contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial is without merit ( see People v. Tannis, 36 A.D.3d 635, 635, 831 N.Y.S.2d 73; People v. Best, 295 A.D.2d 441, 441–442, 743 N.Y.S.2d 313; People v. Robinson, 287 A.D.2d 582, 582–583, 731 N.Y.S.2d 490). Further, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

PRUDE...