People v. Bieniek — 175 A.D.2d 627

Majority

p. 627

The People of the State of New York, Respondent, v Albert Bieniek, Appellant.

— Judgment unanimously affirmed. Memorandum: Viewing the evidence in the light most favorable to the People, we conclude that defendant’s conviction of felony murder (Penal Law § 125.25 [3]) is supported by legally sufficient evidence (see, People v Bleakley, 69 NY2d 490 , 495). Issues of credibility are "best determined by the trier of fact who has the advantage of observing the witnesses and, necessarily, is in a superior position to judge veracity than an appellate court, which reviews but the printed record” (People v Shedrick, 104 AD2d 263 , 274, affd 66 NY2d 1015 , rearg denied 67 NY2d 758 ).

The jury verdict finding defendant guilty of manslaughter in the first degree is not against the weight of the evidence (see, People v Bleakley, supra, at 495 ). The trial court did not err by refusing defendant’s request to charge manslaughter in the second degree as a lesser included offense of intentional murder because there is no reasonable view of the evidence

p. 628

that would support a finding that defendant committed the lesser, but not the greater, offense (see, CPL 300.50 [1], [2]; People v Glover, 57 NY2d 61 , 63). Finally, the sentence was not harsh and excessive. (Appeal from Judgment of Supreme Court, Erie County, Marshall, J. — Murder, 2nd Degree.) Present — Boomer, J. P., Pine, Balio, Lawton and Davis, JJ.

Cases cited

People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 627
People v. Shedrick 104 AD2d 263 N.Y. App. Div. 1984-12-14 at 274 p. 627
People v. Shedrick 66 NY2d 1015 N.Y. 1985-12-26 p. 627
People v. Glover 57 NY2d 61 N.Y. 1982-06-23 at 63 p. 628