Opinion
56 A.D.3d 699 873 N.Y.S.2d 71 The PEOPLE, etc., respondent, v. Demetrius WILLIAMS, appellant. 2008-09107 Supreme Court of New York, Second Department November 18, 2008
Steven Banks, New York, N.Y. (Steven J. Miraglia of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Helen M. Polyzos of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, JOSEPH COVELLO, and JOHN M. LEVENTHAL, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered May 31, 2005, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the defendant, there is no reasonable view of the evidence that would have permitted the jury to find that the affirmative defense to the charge of felony murder ( see Penal Law § 125.25[3] ) was established by a preponderance of the evidence ( see People v. Dillon, 30 A.D.3d 1135, 1136, 815 N.Y.S.2d 574; People v. McNeely, 222 A.D.2d 611, 636 N.Y.S.2d 638). Therefore, the trial court did not err in denying his request for such a charge ( see People v. Butts, 72 N.Y.2d 746, 748-750, 536 N.Y.S.2d 730, 533 N.E.2d 660; People v. Tucker, 33 A.D.3d 635, 822 N.Y.S.2d 126; People v. Caicedo, 234 A.D.2d 379, 651 N.Y.S.2d 110).
The defendant contends that he was deprived of his right to a fair trial by testimony that improperly suggested he intimidated a prosecution witness and a potential witness. However, any error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the alleged error contributed to his conviction ( see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Williams, 56 A.D.3d 700, 868 N.Y.S.2d 90 [Appellate Division Docket No. 2005-05993, decided herewith] ).
The contention raised in Point I of the defendant's supplemental pro se brief is unpreserved for appellate review and, in any event, is without merit, and the contention raised in Point II of the defendant's supplemental pro se brief is without merit.