People v. Vella

247 A.D.2d 642, 669 N.Y.S.2d 236, 1998 N.Y. App. Div. LEXIS 1704

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1998
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Mackston, J.), rendered March 9,1995, convicting him of manslaughter in the first degree, criminal possession of a weapon in the third degree, and criminal possession of a controlled substance in the fifth 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 prove the intent element of manslaughter in the first degree, and to disprove his defense of justification, is unpreserved for appellate review. The defendant’s motion for a trial order of dismissal was insufficient to raise these particular points (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10, 20-21; People v Joseph, 243 AD2d 728; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish that the defendant intended to cause serious physical injury to the victim. After shooting the victim once, the defendant shot him again, at arm’s length, through the heart. The evidence also disproved the defendant’s justification defense beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s sentence, the terms of which were made consecutive, was neither excessive nor otherwise improper under the facts of this case (see, People v Suitte, 90 AD2d 80; People v Charles, 226 AD2d 736).

Rosenblatt, J. P., Miller, Ritter and Copertino, JJ., concur.