People v. Behlin

133 A.D.2d 835, 520 N.Y.S.2d 405, 1987 N.Y. App. Div. LEXIS 51875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered November 11, 1985, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court properly denied the defendant’s motion to set aside the verdict (see, CPL 330.30 [3]), which he grounded on the alleged recantation by one of the People’s witnesses of certain portions of her trial testimony. At thé hearing conducted on the defendant’s motion, this witness asserted her privilege against self-incrimination. The defendant thus failed to sustain his burden (see, CPL 330.40 [2] [g]), and, in any event, the proof of the defendant’s guilt apart from the allegedly recanted testimony was overwhelming (cf., CPL 330.30 [3]). Moreover, we find the sentence imposed to be neither harsh nor excessive (see, People v Suitte, 90 AD2d 80).

We find the defendant’s remaining contentions, including those contained in his supplemental pro se brief, to be either unpreserved for our review or without merit. Mangano, J. P., Thompson, Lawrence and Harwood, JJ., concur.