People v. Morency

• Decision Date: 13 March 2012
• Citation: 940 N.Y.S.2d 138,2012 N.Y. Slip Op. 01830,93 A.D.3d 736
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., respondent, v. Gregory MORENCY, appellant.

2012 N.Y. Slip Op. 01830

93 A.D.3d 736

940 N.Y.S.2d 138

The PEOPLE, etc., respondent,

v.Gregory MORENCY, appellant.

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

March 13, 2012.

Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered October 16, 2009, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, and endangering the welfare of a child (four counts), upon a jury verdict, and sentencing him to determinate terms of 15 years of imprisonment on the conviction of manslaughter in the first degree and 3 1/2 years of imprisonment on the conviction of criminal possession of a weapon in the second degree, to run consecutively, and a definite term of one year of imprisonment on each of the convictions of endangering the welfare of a child, to run concurrently with each other and the other terms of imprisonment.

ORDERED that the judgment is modified, on the law, by directing that the term of imprisonment imposed on the conviction of criminal possession of a weapon in the second degree shall run concurrently with the term of imprisonment imposed on the conviction of manslaughter in the first degree; as so modified, the judgment is affirmed.

The defendant was convicted of manslaughter in the first degree, criminal possession of a weapon in the second degree, and four counts of endangering the welfare of a child after shooting and fatally wounding the decedent. Both the decedent and the defendant suffered multiple gunshot wounds as a result of the incident. The defendant claimed that the shooting was justified because the decedent pulled out a gun on him, and that the decedent was accidentally shot during a struggle for the gun.

The defendant's contention that the People failed to present legally sufficient evidence to disprove the defense of justification in order to sustain his conviction of manslaughter in the first degree beyond a reasonable doubt is unpreserved for appellate review ( see generally Matter of Gilberto M., 89 A.D.3d 734, 931 N.Y.S.2d 889). In any event, this contention is without merit. Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to disprove the defendant's justification defense and to establish the defendant's guilt of manslaughter in the first degree 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 factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 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). Upon reviewing the record here, 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 contention that the testimony of the shooting reconstruction expert should have been precluded is unpreserved for appellate review ( see generally People v. Lebron, 87 A.D.3d 1162, 929 N.Y.S.2d 877). In any event, the contention is without merit. Generally, the admission of expert testimony is a matter within the sound discretion of the trial court ( see generally Jean–Louis v. City of New York, 86 A.D.3d 628, 928 N.Y.S.2d 310). The conclusions and opinions expressed by the shooting reconstruction expert were sufficiently based upon facts in the record and, therefore, were admissible ( see Brullo v. Schiro, 239 A.D.2d 309, 657 N.Y.S.2d 92). Any alleged weaknesses in the expert's testimony went to the credibility and weight of the evidence rather than to its admissibility ( see People v. Garcia, 299 A.D.2d 493, 749 N.Y.S.2d 882).

Similarly, the Supreme Court did not err in admitting a computer-generated animation of the decedent's shooting as demonstrative evidence to illustrate the expert's testimony. “It is for the trial court, in the exercise of its sound discretion, [and] based upon the nature of proof and the context in which it is offered, to...