Opinion
Submitted June 21, 1999
October 21, 1999
Elizabeth S. Ostrow, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Monique Ferrell, Jacqueline M. Linares, and Melissa P. Eisen of counsel), for respondent.
DANIEL W. JOY, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered February 26, 1997, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (D'Emic, J.), of those branches of the defendant's omnibus motion which were to suppress statements he made to law enforcement officials and identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of a fair trial by the court's submission to the jury of the crime of manslaughter in the first degree (see, Penal Law § 125.20[1]) as a lesser-included offense of the crime of murder in the second degree (see, Penal Law § 125.25[1]) charged in the indictment (see, CPL 300.50[1]). Viewing the evidence adduced at trial in a light most favorable to the defendant (see, People v. Johnson, 45 N.Y.2d 546 ), it reasonably supported a finding that when he repeatedly shot his victim's chest and back, he acted with the intent either to cause serious physical injury or with the intent to cause death (see, People v. Butler, 57 N.Y.2d 664 ; People v. Albert, 213 A.D.2d 414 ; People v. McKelvey, 150 A.D.2d 807 ; cf., People v. Wheeler, ___ A.D.2d ___; ___ [2d Dept., Jan. 25, 1999]; People v. Kelly, 221 A.D.2d 661 ). As the jury could have reasonably found that the defendant committed the lesser but not the greater crime (see,People v. Glover, 57 N.Y.2d 61 ), the submission of the lesser-included offense of manslaughter in the first degree was proper.
Contrary to the defendant's further contention, his arraignment was not strategically delayed so that he could be questioned outside the presence of counsel. Since the police were investigating the defendant's possible involvement in an unrelated crime, one which they were aware of at the time of his initial arrest, the delay in arraignment was warranted (see, People v. Marshall, 244 A.D.2d 508 ; People v. Marinelli, 238 A.D.2d 525 ; People v. Quartieri, 171 A.D.2d 889 ).
The defendant's remaining contentions do not warrant reversal under the circumstances of this case.
JOY, J.P., KRAUSMAN, H. MILLER, and FEUERSTEIN, JJ., concur.