People v Rivera

People v Rivera 2014 NY Slip Op 08463 Decided on December 3, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
ROBERT J. MILLER
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
2011-11804
(Ind. No. 3428/09)

[*1]The People of the State of New York, respondent,

v

Santo Rivera, appellant.

Lynn W. L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, Lauren Schorr, and Melissa King of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 22, 2011, as amended December 15, 2011, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484; People v Bochi, 119 AD3d 811; People v King, 110 AD3d 1100). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt. Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the jury's rejection of the justification defense was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

In view of the minimal evidence of the defendant's intoxication, the decision of his trial counsel not to request a jury charge on intoxication, and to rely strictly on the justification defense, appears to have been a reasonable trial tactic. Thus, contrary to the defendant's assertion, he was not deprived of the effective assistance of counsel (see People v Lydon, 134 AD2d 287; People v Barrentine, 112 AD2d 440; see generally People v Benevento, 91 NY2d 708, 712; People v Baldi, 54 NY2d 137, 146-147).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

DILLON, J.P., MILLER, MALTESE and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court