People v. Creekmur

People v Creekmur (2016 NY Slip Op 01859)

People v Creekmur

2016 NY Slip Op 01859

Decided on March 16, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 16, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
COLLEEN D. DUFFY, JJ.

2014-08865
(Ind. No. 1128/12)

[*1]The People of the State of New York, respondent,

v

Charles Creekmur, appellant.

Steven A. Feldman, Uniondale, NY (Arza Feldman of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Jacqueline Rosenblum of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered September 17, 2014, convicting him of manslaughter in the first degree, 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 NY2d 620), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt (see generally People v Suphal, 7 AD3d 547; People v Velez, 1 AD3d 290; People v Centeno, 291 AD2d 265; People v Torres, 182 AD2d 788; People v Varela, 164 AD2d 924; People v Rosado, 123 AD2d 649). 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 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear testimony, and observe demeanor (see People v Mateo, 2 NY3d 383). 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 NY3d 633).

The defendant's argument that certain questions posed by the prosecutor during the direct examination of one of the People's witnesses and during the cross-examination of the defendant were improper is partially unpreserved for appellate review (see CPL 470.05[2]; People v Aguilar, 79 AD3d 899; People v Wright, 62 AD3d 916). In any event, to the extent that the prosecutor's questions were improper, the prosecutor's misconduct was "not so flagrant or pervasive as to deny the defendant a fair trial" (People v Wright, 62 AD3d at 917 [internal quotation marks omitted]; see People v Credle, 124 AD3d 792; People v Aguilar, 79 AD3d 899).

Similarly, the defendant's contentions that the Supreme Court improperly failed to conduct a hearing to determine the amount of restitution, and improperly failed to consider the defendant's ability to pay restitution, are unpreserved for appellate review (see CPL 470.05[2]; People v Winslow, 100 AD3d 1031; People v Isaacs, 71 AD3d 1161; People v Golgoski, 40 AD3d 1138), and, in any event, without merit (see People v Baxter, 102 AD3d 805; People v Harris, 72 AD3d 1110; People v Baez, 52 AD3d 840; People v Madrid, 52 AD3d 532).

DILLON, J.P., DICKERSON, AUSTIN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court