People v. Wall
938 N.Y.S.2d 449
N.Y. App. Div.
2012
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JAMES WALL, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department

February 14, 2012

92 A.D.3d 812 | 938 N.Y.S.2d 449

The defendant’s contention that the evidence was legally insufficient to establish his guilt of two counts of murder in the second degree is unpreserved for appellate review since he did not raise in the Supreme Court the specific ground that he now raises on appeal (see CPL 470.05 [2]; ; ). In any event, the contention is without merit. Viewing the evidence in the light most favorable to the prosecution (see ), we find that it was legally sufficient to establish the defendant’s guilt of two counts of murder in the second degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt as to murder in the second degree, kidnapping in the first degree, and kidnapping in the second degree was not against the weight of the evidence (see ).

The defendant’s contention that he was entitled to a charge on circumstantial evidence is unpreserved for appellate review (see CPL 470.05 [2]; ) and, in any event, is without merit. Where proof of all elements of a charge is based wholly on circumstantial evidence, the jury should be given a circumstantial evidence charge (see ; ). However, where a charge is supported with both circumstantial and direct evidence, the trial court need not so instruct the jury (see ; ; ). Here, there was direct evidence of the defendant’s guilt provided by the testimony of the surviving kidnapping victim and the codefendant.

The defendant was, as a matter of fundamental fairness, entitled to a copy of a prior statement of a witness who testified on his behalf at trial, as the prosecutor used that prior statement to impeach the witness during cross-examination (see ; ). Under the circumstances of this case, however, the error does not require reversal (see ; ; cf. ).

The defendant’s contention that the counts of murder in the second degree and kidnapping in the first degree were multiplicitous is unpreserved for appellate review (see CPL 470.05 [2]; ) and, in any event, without merit (see ).

The sentence imposed was not excessive (see ).

The defendant’s remaining contentions are without merit.

Skelos, J.P., Balkin, Roman and Sgroi, JJ., concur.