People v. Creekmur

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 [1983]), 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 [2004]; People v Velez, 1 AD3d 290 [2003]; People v Centeno, 291 AD2d 265 [2002]; People v Torres, 182 AD2d 788 [1992]; People v Varela, 164 AD2d 924 [1990]; People v Rosado, 123 AD2d 649 [1986]). 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 [2007]), 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 [2004]). 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 [2006]). *1053 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 [2010]; People v Wright, 62 AD3d 916 [2009]). 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 [2015]; People v Aguilar, 79 AD3d 899 [2010]). 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 [2012]; People v Isaacs, 71 AD3d 1161 [2010]; People v Golgoski, 40 AD3d 1138 [2007]), and, in any event, without merit (see People v Baxter, 102 AD3d 805 [2013]; People v Harris, 72 AD3d 1110 [2010]; People v Baez, 52 AD3d 840 [2008]; People v Madrid, 52 AD3d 532 [2008]). Dillon, J.P., Dickerson, Austin and Duffy, JJ., concur.