Opinion
2012-05-15
The PEOPLE, etc., respondent, v. Daniel FLOYD, appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered April 9, 2010, convicting him of murder in the second degree, manslaughter in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that his right to a public trial was violated when the Supreme Court allegedly temporarily excluded his mother from the courtroom during the initial portion of the voir dire because there was only available seating for the prospective jurors who were to be called into the courtroom ( see Presley v. Georgia, 558 U.S. ––––, 130 S.Ct. 721, 175 L.Ed.2d 675;People v. Martin, 16 N.Y.3d 607, 609, 925 N.Y.S.2d 400, 949 N.E.2d 491). However, the record reflects that the defendant's claim that his right to a public trial was violated is unpreserved for appellate review ( see People v. Borukhova, 89 A.D.3d 194, 225, 931 N.Y.S.2d 349;People v. George, 79 A.D.3d 1148, 913 N.Y.S.2d 569,lv. granted16 N.Y.3d 895, 926 N.Y.S.2d 30, 949 N.E.2d 978;People v. Alvarez, 76 A.D.3d 1098, 908 N.Y.S.2d 249,lv. granted16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179), and we decline to review it in the exercise of our interest of justice jurisdiction ( seeCPL 470.05[2]; People v. Borukhova, 89 A.D.3d at 225, 931 N.Y.S.2d 349).
The defendant further argues that his conviction of felony murder was against the weight of the evidence. We disagree. In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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 jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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).
Contrary to the defendant's further contention, the evidence was legally sufficient to support his conviction of criminal possession of a weapon in the second degree ( seePenal Law § 265.03[3]; People v. White, 75 A.D.3d 109, 121, 901 N.Y.S.2d 346). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to that conviction 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).