Opinion
2000-09298
Argued June 10, 2002.
October 7, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), dated October 4, 2000, convicting him of manslaughter in the first degree (two counts), upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Bruce Seeliger of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, since the crime of manslaughter in the first degree "was neither contained in the original indictment nor considered as a lesser included offense, the defendant was [not] implicitly acquitted of that crime as a consequence of his first trial" (People v. Oglesby, 174 A.D.2d 761). Accordingly, the defendant's prosecution for manslaughter in the first degree was not barred by the constitutional prohibition against double jeopardy.
The defendant's remaining contention is unpreserved for appellate review (see CPL 470.05; People v. Dodson, 48 N.Y.2d 36, 38), and we decline to reach it in the exercise of our interest of justice jurisdiction.
SANTUCCI, J.P., S. MILLER, GOLDSTEIN and TOWNES, JJ., concur.