Opinion
130
February 5, 2002.
Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered July 14, 1997, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
KATHERINE ADAMS WILSON, for respondent.
SARA GURWITCH, for defendant-appellant.
Before: Mazzarelli, J.P., Saxe, Sullivan, Wallach, Friedman, JJ.
The court properly refused to submit manslaughter in the first degree as a lesser included offense of second-degree murder since there was no reasonable view of the evidence, viewed most favorably to defendant, that he merely intended to inflict serious physical injury but not to cause death. Defendant, without provocation and while possessing a motive to kill the victim, squeezed the trigger of a revolver four times at close range, thereby discharging two shots that fatally wounded the victim in the chest and torso, and the second shot was fired after the victim had already begun to fall to the ground (see, People v. Evans, 192 A.D.2d 671,lv denied 82 N.Y.2d 753).
The court's Sandoval ruling, which permitted elicitation of the fact that defendant had previously been convicted of first-degree manslaughter, while precluding any underlying facts, balanced the appropriate factors and was a proper exercise of discretion (see, People v. Walker, 83 N.Y.2d 455, 458-459; People v. Mattiace, 77 N.Y.2d 269, 275-276; People v. Pavao, 59 N.Y.2d 282, 292).
The People's opening statement, which included a reading of the indictment delineated the particular offense with which defendant was charged, including the elements which had to be proven, and provided sufficient factual details so that the jury could "intelligently understand the nature of the case they ha[d] been chosen to decide" (People v. Kurtz, 51 N.Y.2d 380, 384, cert denied 459 U.S. 847).
The court imposed reasonable restrictions on defense counsel's opening statement. The court was entitled to control the content of a defense opening that went beyond a brief outline of what it believed would be supported by the evidence (see, People v. Valentin, 211 A.D.2d 509, lv denied, 85 N.Y.2d 944). In any event, the defense was afforded wide latitude in describing credibility problems of potential prosecution witnesses, and the only restriction imposed by the court was a reasonable preclusion of the naming of specific prosecution witnesses, where there was a serious question as to which witnesses would actually testify and where references to ultimately uncalled witnesses might mislead the jury.
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.