Opinion
1103 KA 15-01889.
10-06-2017
The PEOPLE of the State of New York, Respondent, v. Pablo CONTRERAS, also known as "New York", Defendant–Appellant.
Mary R. Humphrey, New Hartford, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Mary R. Humphrey, New Hartford, for Defendant–Appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him after a nonjury trial of manslaughter in the first degree ( Penal Law § 125.20[1] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ). Defendant contends that the evidence is legally insufficient to support his conviction of manslaughter because he was too intoxicated to form the requisite intent to cause serious physical injury to another person. We conclude that defendant failed to preserve that contention for our review inasmuch as his general motion for a trial order of dismissal was not " ‘specifically directed’ at" that alleged shortcoming in the evidence ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; see generally People v. Fafone, 129 A.D.3d 1667, 1668, 13 N.Y.S.3d 738, lv. denied 26 N.Y.3d 1039, 22 N.Y.S.3d 169, 43 N.E.3d 379 ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that a rational trier of fact could infer that defendant intended to cause serious physical injury (see generally People v. Hunter, 70 A.D.3d 1388, 1388, 894 N.Y.S.2d 685, lv. denied 15 N.Y.3d 751, 906 N.Y.S.2d 824, 933 N.E.2d 223 ).
Inasmuch as defendant failed to renew his motion for a trial order of dismissal after he presented a justification defense at trial, his further contention that the evidence is legally insufficient to support the conviction of manslaughter in the first degree because the People failed to disprove that defense is also unpreserved for our review (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ; see also People v. Diehl, 128 A.D.3d 1409, 1410, 6 N.Y.S.3d 899 ). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). County Court, as the finder of fact, "was entitled to discredit the testimony of defendant" that the victim was the initial aggressor and was armed with a "big knife" ( People v. Streeter, 21 A.D.3d 1291, 1292, 804 N.Y.S.2d 164, lv. denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680 ). We note that the court "was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the [court] failed to give the evidence the weight it should be accorded"( People v. Carter, 145 A.D.3d 1567, 1568, 43 N.Y.S.3d 651 [internal quotation marks omitted]; see People v. Chelley, 121 A.D.3d 1505, 1506, 993 N.Y.S.2d 597, lv. denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42, reconsideration denied 25 N.Y.3d 1070, 12 N.Y.S.3d 622, 34 N.E.3d 373 ).
Even assuming, arguendo, that defendant preserved for our review his contention that his oral statements to the police were custodial in nature and unlawfully obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, we conclude that defendant abandoned that contention by failing to seek a ruling on that part of his omnibus motion seeking to suppress his statements and by failing to object to the admission in evidence of his statements at trial (see People v. Adams, 90 A.D.3d 1508, 1509, 936 N.Y.S.2d 406, lv. denied 18 N.Y.3d 954, 944 N.Y.S.2d 483, 967 N.E.2d 708 ). Moreover, even assuming, arguendo, that the court did deny that part of defendant's omnibus motion seeking to suppress his statements, we cannot consider the merits of defendant's contention inasmuch as it was "defendant's obligation to prepare a proper record" ( People v. Olivo, 52 N.Y.2d 309, 320, 438 N.Y.S.2d 242, 420 N.E.2d 40, rearg. denied 53 N.Y.2d 797, 439 N.Y.S.2d 1030, 422 N.E.2d 596 ), and defendant failed to include in the record on appeal his omnibus motion challenging the admissibility of the statements, a transcript of a pretrial Huntley hearing, and the court's suppression ruling (see generally People v. Smith, 147 A.D.3d 1527, 1530, 48 N.Y.S.3d 563, lv. denied 29 N.Y.3d 1087, 64 N.Y.S.3d 176, 86 N.E.3d 263 ).
Defendant contends that the court abused its discretion in denying his request for a mistrial on the ground that he was denied his right to a fair trial by the testimony of a jailhouse informant. We conclude that defendant's contention is unpreserved for our review inasmuch as the record establishes that defendant did not request a mistrial (see CPL 470.05[2] ). Furthermore, defendant consented to the People's motion to withdraw the informant's testimony, and he did not oppose the court's proposed remedy of striking the informant's testimony from the record. The trial court was in the best position to determine the remedy necessary to protect defendant's right to a fair trial (see e.g. People v. Duell, 124 A.D.3d 1225, 1228, 999 N.Y.S.2d 288, lv. denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 ; People v. Lewis, 247 A.D.2d 866, 866, 668 N.Y.S.2d 300, lv. denied 93 N.Y.2d 1021, 697 N.Y.S.2d 580, 719 N.E.2d 941 ) and, "in the absence of further objection or a request for a mistrial, [striking the informant's testimony] ‘must be deemed to have corrected the error to the defendant's satisfaction’ " ( People v. Acosta, 134 A.D.3d 1525, 1526, 22 N.Y.S.3d 761, lv. denied 27 N.Y.3d 990, 38 N.Y.S.3d 101, 59 N.E.3d 1213, quoting People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.