| People v Prince |
| 2016 NY Slip Op 00994 |
| Decided on February 10, 2016 |
| 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 February 10, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
COLLEEN D. DUFFY, JJ.
2013-10800
(Ind. No. 2128/12)
v
Darren Prince, appellant.
Lynn W. L. Fahey, New York, NY (Tammy Linn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Rhea A. Grob, Daniel Berman, and Bernarda Villalona of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 19, 2013, convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court properly denied the defendant's request to charge the jury on criminally negligent homicide as a lesser-included offense of murder in the second degree. There is no reasonable view of the evidence, viewed in the light most favorable to the defendant (see People v Rivera, 23 NY3d 112, 120-121; People v Martin, 59 NY2d 704, 705), which would support a finding that the defendant acted with criminal negligence (see People v Hill, 266 AD2d 473, 474; People v Stephens, 198 AD2d 245, 245-246, affd 84 NY2d 990; People v Duncan, 55 AD2d 690, 690).
The defendant's contention that the trial court erred in denying his request for a missing witness charge is partially unpreserved for appellate review, since some of the specific arguments he now makes were not raised before the Supreme Court (see CPL 470.05[2]; People v Spinelli, 79 AD3d 1152, 1152; People v Lopez, 19 AD3d 510, 511). In any event, the contention is without merit, as the defendant failed to meet his burden of demonstrating that the witnesses were under the People's control (see People v Savinon, 100 NY2d 192, 200; People v Roseboro, 127 AD3d 998, 999).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
DILLON, J.P., HALL, ROMAN and DUFFY, JJ., concur.
ENTER: Aprilanne Agostino Clerk of the Court