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

773
KA 14-02287
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH R. FAFONE, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John Lewis
DeMarco, J.), rendered June 14, 2012. The judgment convicted
defendant, after a nonjury trial, of manslaughter in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of manslaughter in the first degree (Penal
Law § 125.20 [1]). Contrary to defendant’s contention, County Court
did not abuse its discretion in refusing to admit in evidence the
supporting deposition of a witness who did not appear at trial
inasmuch as the content of the supporting deposition was cumulative to
other trial testimony (see People v Petty, 7 NY3d 277, 286-287).

      To the extent that defendant contends that the evidence is
legally insufficient to support the conviction because the People
failed to disprove the defense of justification beyond a reasonable
doubt, we conclude that such contention is unpreserved for our review
inasmuch as defendant failed to move for a trial order of dismissal on
that ground (see People v Bakerx, 114 AD3d 1244, 1245, lv denied 22
NY3d 1196). To the extent that defendant preserved his challenge to
the legal sufficiency of the evidence, we conclude that the evidence
is legally sufficient to support the conviction of manslaughter in the
first degree (see id.). Viewing the evidence in light of the elements
of the crime in this nonjury trial (see People v Danielson, 9 NY3d
342, 349), we further conclude that the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495).
                                 -2-                              773
                                                            KA 14-02287

     The sentence is not unduly harsh or severe.




Entered:   June 19, 2015                           Frances E. Cafarell
                                                   Clerk of the Court
