People v. Cintron — 72 A.D.3d 699

Majority

p. 699

The People of the State of New York, Respondent, v Orlando Cintron, Appellant.

[898 NYS2d 236]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered February 19, 2008, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in denying his untimely request for a missing witness charge with respect to a 911 emergency caller, based on its finding that the unidentified caller was not available to the People to testify at trial (see People v Gonzalez, 68 NY2d 424 , 428-429 [1986]; People v Perry, 218 AD2d 818 , 819 [1995]; cf. People v Gladden, 180 AD2d 747 , 748 [1992]).

The defendant’s contention that the People did not disprove his justification defense by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 , 492-493 [2008]; People v Boyle, 289 AD2d 251 , 252 [2001]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 , 621 [1983]), we find that it was legally sufficient to disprove the defendant’s justification defense beyond a reasonable doubt (see Penal Law § 35.15 [2] [a]; People v Lemaire, 187 AD2d 532 , 533 [1992]; People v Henegan, 150 AD2d 606 , 607 [1989]; People v Troche, 147 AD2d 513 , 514 [1989]; People v Rosado, 123 AD2d 649 [1986]; see also People v Lee, 185 AD2d 824 [1992]). Moreover, in fulfilling our responsibility to conduct

p. 700

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 the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 , 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490 , 495 [1987]). 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]).

The defendant’s remaining contention does not require reversal. Skelos, J.P., Santucci, Angiolillo and Chambers, JJ., concur.

Cases cited

People v. Gonzalez 68 NY2d 424 N.Y. 1986-11-25 at 428-429 p. 699
People v. Perry 218 AD2d 818 N.Y. App. Div. 1995-08-28 at 819 p. 699
People v. Gladden 180 AD2d 747 N.Y. App. Div. 1992-02-18 at 748 p. 699
People v. Hawkins 11 NY3d 484 N.Y. 2008-11-25 at 492-493 p. 699
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 at 621 p. 699
People v. Danielson 9 NY3d 342 N.Y. 2007-12-13 p. 700
Middleton v. McNeil 542 US 946 SCOTUS 2004-06-28 p. 700
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 700
People v. Romero 7 NY3d 633 N.Y. 2006-11-21 p. 700