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

464
KA 10-01872
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSE LATORRE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (STEPHEN J. DILORENZO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered September 8, 2010. The judgment
convicted defendant, upon a jury verdict, of manslaughter in the first
degree.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of manslaughter in the first degree (Penal Law § 125.20
[1]), defendant contends that the evidence is legally insufficient to
support the conviction and that the verdict is against the weight of
the evidence. The issue of legal sufficiency is preserved for our
review regarding the evidence of identification because that was the
basis of defendant’s motion for a trial order of dismissal after the
People presented their proof. Defendant failed, however, to preserve
for our review his further contention concerning the alleged legal
insufficiency of the evidence of intent, inasmuch as defense counsel
did not address the issue of intent in his motion for a trial order of
dismissal (see generally People v Gray, 86 NY2d 10, 19). With respect
to the legal sufficiency of the identification evidence, we note that
reversal is warranted “where the testimony is incredible and
unbelievable, that is, impossible of belief because it is manifestly
untrue, physically impossible, contrary to experience, or self-
contradictory” (People v Wallace, 306 AD2d 802, 802-803 [internal
quotation marks omitted]). We conclude that the evidence of
identification in this case, although largely circumstantial, is
legally sufficient to support the conviction (see generally People v
Bleakley, 69 NY2d 490, 495). In addition, 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
                                 -2-                           464
                                                         KA 10-01872

495; People v Flagg, 59 AD3d 1003, 1004, lv denied 12 NY3d 853). We
further reject defendant’s contention that defense counsel was
ineffective for failing to request that Supreme Court charge a lesser
included offense (see People v Calderon, 66 AD3d 314, 320, lv denied
13 NY3d 858). Finally, the sentence is not unduly harsh or severe.




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
