People v. Johnson , 613 N.Y.S.2d 429 ( 1994 )

205 A.D.2d 707 (1994) 613 N.Y.S.2d 429

The People of the State of New York, Respondent,
v.
Errol Johnson, Jr., Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 20, 1994

O'Brien, J. P., Pizzuto, Joy and Krausman, JJ., concur.

Ordered that the judgment and the order are affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of manslaughter in the second degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). Credible evidence in the record shows that the defendant had a familiarity with the operation and handling of guns, as well as an awareness of their potential danger. Nevertheless, he pointed a gun at his girlfriend's head, at admittedly close range, and pulled the trigger. Although the defendant allegedly removed the gun's "clip" before firing, he did not inspect the chamber to determine if any bullets remained therein. The defendant's recklessness in this regard provided the necessary element for his manslaughter conviction (see, People v Barnes, 50 N.Y.2d 375, 381; People v Kennedy, 47 N.Y.2d 196; People v Rabbit, 123 AD2d 722, 723, affd 70 N.Y.2d 663; People v Martinez, 123 AD2d 361, 362).

In the context of the summation and the trial evidence as a whole, the defendant's claim of prosecutorial misconduct during summation, on which his motion to vacate judgment is also based, lacks merit. Moreover, the claim is properly addressed on direct appeal, as the record contains sufficient evidence for this Court to review it (see, CPL 440.10 [2] [b]; People v Cooks, 67 N.Y.2d 100, 103; People v Brown, 161 AD2d 527, 528).

Finally, the defendant's sentence is not excessive (see, People v Suitte, 90 AD2d 80).