People v. Bieniek

175 A.D.2d 627, 573 N.Y.S.2d 946, 1991 N.Y. App. Div. LEXIS 10158

Opinion

— 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 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.