People v. Sylvestri

Appellate Division of the Supreme Court of New York

People v. Sylvestri

161 A.D.2d 361, 555 N.Y.S.2d 110, 1990 N.Y. App. Div. LEXIS 5295

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 10, 1990

StatusPublished

Cited by1 cases

This text of 161 A.D.2d 361 (People v. Sylvestri) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Sylvestri, 161 A.D.2d 361, 555 N.Y.S.2d 110, 1990 N.Y. App. Div. LEXIS 5295 (N.Y. Ct. App. 1990).

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Opinion

Judgment of the Supreme Court, New York County (Paul Bookson, J.), rendered April 9, 1987, convicting defendant, after jury trial, of manslaughter in the first degree and sentencing him to an indeterminate term of imprisonment of from 7½ to 22½ years, unanimously affirmed.

Mariano Montilla began a fight with Wilfredo Morrero. Montilla picked up a wooden stick and swung it at Morrero’s head. The two ended up wrestling each other to the ground. While Montilla had Morrero pinned down, defendant raised a two-by-four piece of wood and struck Morrero in the head. Morrero was taken to the hospital and died of his injuries several days later. The fight was witnessed by James Hackett and Gregorio Velazquez.

Defendant urges that his actions were justified to prevent Morrero from inflicting serious injury upon Montilla. The People, however, disproved the defense of justification beyond a reasonable doubt. Each witness’s testimony demonstrated that defendant did not have a reasonable belief that Morrero was using or was about to use deadly physical force or that the force which he used was necessary to prevent injury (see, Penal Law § 35.15). Indeed, the evidence indicates that Morrero was hit repeatedly and was pinned down when defendant struck the fatal blow to his head. While there are some inconsistencies in the witnesses’ testimony, to the extent that they are relevant, they are minor. Moreover, it is well settled that evaluation of the credibility of witnesses is the province of the jury (People v Parks, 41 NY2d 36, 47). Concur—Kupferman, J. P., Ross, Asch, Ellerin and Rubin, JJ.

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Judgment of the Supreme Court, New York County (Paul Bookson, J.), rendered April 9, 1987, convicting defendant, after jury trial, of manslaughter in the first degree and sentencing him to an indeterminate term of imprisonment of from 7½ to 22½ years, unanimously affirmed.

Mariano Montilla began a fight with Wilfredo Morrero. Montilla picked up a wooden stick and swung it at Morrero’s head. The two ended up wrestling each other to the ground. While Montilla had Morrero pinned down, defendant raised a two-by-four piece of wood and struck Morrero in the head. Morrero was taken to the hospital and died of his injuries several days later. The fight was witnessed by James Hackett and Gregorio Velazquez.

Defendant urges that his actions were justified to prevent Morrero from inflicting serious injury upon Montilla. The People, however, disproved the defense of justification beyond a reasonable doubt. Each witness’s testimony demonstrated that defendant did not have a reasonable belief that Morrero was using or was about to use deadly physical force or that the force which he used was necessary to prevent injury (see, Penal Law § 35.15). Indeed, the evidence indicates that Morrero was hit repeatedly and was pinned down when defendant struck the fatal blow to his head. While there are some inconsistencies in the witnesses’ testimony, to the extent that they are relevant, they are minor. Moreover, it is well settled that evaluation of the credibility of witnesses is the province of the jury (People v Parks, 41 NY2d 36, 47). Concur—Kupferman, J. P., Ross, Asch, Ellerin and Rubin, JJ.

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Bluebook (online)

161 A.D.2d 361, 555 N.Y.S.2d 110, 1990 N.Y. App. Div. LEXIS 5295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-sylvestri-nyappdiv-1990.

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