            SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

701
KA 12-01916
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                MEMORANDUM AND ORDER

SEAN BARILL, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M. William
Boller, A.J.), rendered August 15, 2012. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is unanimously
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him upon
a jury verdict of murder in the second degree (Penal Law ' 125.25 [1]
[intentional murder]). Defendant failed to preserve for our review his
challenge to the legal sufficiency of the evidence inasmuch as he failed
to renew his motion for a trial order of dismissal after presenting evidence
(see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any
event, defendant=s challenge is without merit (see People v Wade, 276 AD2d
406, 406, lv denied 96 NY2d 788; see generally People v Bleakley, 69 NY2d
490, 495).

     Contrary to defendant=s further contention, viewing the evidence in
light of the elements of the crime as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against
the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Specifically, we conclude that the jury Adid not fail to give the evidence
the weight it should be accorded in rejecting defendant=s justification
defense@ and thus that the verdict is not against the weight of the evidence
in that respect (People v Wolf, 16 AD3d 1167, 1168; see generally Bleakley,
69 NY2d at 495). We note that defendant inflicted 41 knife wounds on
the victim, there was little sign of a struggle although the victim=s blood
was found throughout defendant=s apartment, and defendant had only small
cuts on his fingers that were consistent with his hand slipping on a knife
blade as he stabbed the victim, as well as a few scratches on his back.
 Furthermore, defendant took preliminary steps to conceal the crime by
gathering some of the weapons and the clothing he wore during the incident,
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                                                                KA 12-01916

and bundling those items in a rug. Defendant also wiped the victim=s blood
off some of the knives, took a shower, changed his clothes and fled the
scene, and he then took another shower and had his girlfriend cut his
hair. Contrary to defendant=s contention that the jury should have
credited his testimony that his actions were justified, A >[r]esolution
of issues of credibility, as well as the weight to be accorded to the
evidence presented, are primarily questions to be determined by the jury,
which saw and heard the witnesses= @ (People v Sorrentino, 12 AD3d 1197,
1197-1198, lv denied 4 NY3d 748).

     Defendant=s contentions with respect to the integrity of the grand
jury proceedings are Anot reviewable on appeal because the grand jury
minutes are not included in the record on appeal@ (People v Dilbert, 1
AD3d 967, 967-968, lv denied 1 NY3d 626; see generally People v Hawkins,
113 AD3d 1123, 1125, lv denied 22 NY3d 1156; People v Lane, 47 AD3d 1125,
1127 n 3, lv denied 10 NY3d 866; People v Brooks, 163 AD2d 864, 865, lv
denied 76 NY2d 984).

     We reject defendant=s further contention that he was deprived of a
fair trial by prosecutorial misconduct. Defendant contends, inter alia,
that the prosecutor impermissibly cross-examined him regarding his
interest in the outcome of the trial. It is well settled, however, that
a defendant is an interested witness as a matter of law (see e.g. People
v Newman, 107 AD3d 827, 827-828; People v Wilson, 93 AD3d 483, 484, lv
denied 19 NY3d 978; People v Williams, 81 AD3d 993, 994, lv denied 16
NY3d 901), and the prosecutor=s cross-examination merely established that
fact. Defendant failed to preserve for our review his contention that,
on summation, the prosecutor Aimproperly expressed his personal belief@
with respect to the evidence (People v Morris, 267 AD2d 1032, 1033, lv
denied 95 NY2d 800), and in any event that contention is without merit.
 Defendant=s additional contentions with respect to prosecutorial
misconduct are also without merit.

     Contrary to defendant=s further contention, Supreme Court properly
denied his request for an intoxication charge. Defendant failed to
present evidence Atending to corroborate his claim of intoxication, such
as the number of drinks, the period of time during which they were consumed,
the lapse of time between consumption and the event at issue, whether
he consumed alcohol on an empty stomach, whether his drinks were high
in alcoholic content, and the specific impact of the alcohol upon his
behavior or mental state@ (People v Gaines, 83 NY2d 925, 927).
Consequently, although Athere was evidence of defendant=s alcohol . . .
consumption, there was no evidence that could raise a reasonable doubt
as to whether his faculties were so impaired at the time of the crime
that he could not have formed the requisite intent@ (People v Malaussena,
44 AD3d 349, 349, affd 10 NY3d 904).

     Defendant further contends that the court erred in denying his request
for a missing witness charge with respect to his girlfriend, who arrived
at the scene of the crime after the stabbing. We reject that contention.
 AThere are three preconditions to a missing witness instruction[.]
First, the witness=s knowledge must be material to the trial. Second,
the witness must be expected to give noncumulative testimony favorable
                                   -3-                                 701
                                                               KA 12-01916

to the party against whom the charge is sought . . . Third, the witness
must be available to that party@ (People v Hall, 18 NY3d 122, 131; see
People v Gonzalez, 68 NY2d 424, 427). The initial burden of establishing
entitlement to the charge rests upon the party seeking the instruction
(see Gonzalez, 68 NY2d at 427-428; see generally People v Thomas, 56 AD3d
1241, 1241; People v Wade, 38 AD3d 1315, 1316, lv denied 8 NY3d 992).
Here, in the absence of any evidence establishing that the witness was
available to the People or would testify in their favor, A[d]efendant
failed to meet his burden of establishing that he was entitled to a missing
witness charge with respect to@ his girlfriend (Wade, 38 AD3d at 1316).

     Even assuming, arguendo, that defendant initially made a sufficient
motion for a Dunaway hearing merely by mentioning the name of the case
in his request for a Huntley hearing (cf. People v Jones, 95 NY2d 721,
725-729), we conclude that defendant abandoned that request because he
Afailed to seek a ruling on those parts of his omnibus motion concerning
the alleged [Dunaway] violation . . . or to object to the admission of
his statements in evidence at trial . . . on those grounds@ (People v
Nix, 78 AD3d 1698, 1699, lv denied 16 NY3d 799, cert denied ___ US ___,
132 S Ct 157; see People v Wright, 107 AD3d 1398, 1400; People v Smith,
13 AD3d 1121, 1122, lv denied 4 NY3d 803; see generally People v Rodriguez,
50 NY2d 553, 557).

     The sentence is not unduly harsh or severe. We have considered
defendant=s remaining contentions and conclude that they are without merit.




Entered:   August 8, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
