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People v. Lim

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1991
172 A.D.2d 563 (N.Y. App. Div. 1991)

Opinion

April 1, 1991

Appeal from the Supreme Court, Kings County (Owens, J.).


Ordered that the judgment is affirmed.

On October 15, 1987, the victim and his girlfriend were walking down the street when a car, whose radio was playing loudly, pulled into a driveway in front of them. The victim sang along with the radio and the driver of the car stepped out and cursed at the victim. After an initial confrontation, the defendant walked into his house, came back out, started fighting with the victim, and shot him. The victim's girlfriend, who was the only eyewitness, testified that the victim did not struggle or try to put up a fight.

Viewing the evidence in the light most favorable to the defendant (see, People v. Martin, 59 N.Y.2d 704, 705), we find no reasonable view of the evidence which would support a finding that the defendant committed manslaughter in the second degree but did not commit murder in the second degree (see, CPL 300.50; People v. Ford, 62 N.Y.2d 275, 281). The defendant's conduct precluded a reasonable jury from finding that he had acted recklessly and not intentionally (see, Penal Law § 125.15; § 125.25 [1]; People v. Ochoa, 142 A.D.2d 741; People v. Bell, 111 A.D.2d 926; People v. Hartley, 103 A.D.2d 935, affd 65 N.Y.2d 703). Therefore, the trial court did not err in refusing to charge the lesser included offense of manslaughter in the second degree.

The evidence adduced at the suppression hearing supports the court's determination that the defendant voluntarily consented to go to the police precinct to be photographed and fingerprinted. The People met the initial burden of showing the legality of the police conduct, and the defendant, by his own testimony, confirmed his voluntary consent (see, People v. Wise, 46 N.Y.2d 321, 329; People v. Gonzalez, 39 N.Y.2d 122, 128-130; People v Barclift, 140 A.D.2d 615).

The defendant's remaining contentions are unpreserved for appellate review (see, People v. Autry, 75 N.Y.2d 836; People v Vasquez, 66 N.Y.2d 968, cert denied 475 U.S. 1109; People v Love, 57 N.Y.2d 1023; People v. West, 56 N.Y.2d 662), and we decline to consider them in the exercise of our interest of justice jurisdiction. Thompson, J.P., Eiber, Balletta and O'Brien, JJ., concur.


Summaries of

People v. Lim

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1991
172 A.D.2d 563 (N.Y. App. Div. 1991)
Case details for

People v. Lim

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN LIM, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 1, 1991

Citations

172 A.D.2d 563 (N.Y. App. Div. 1991)
568 N.Y.S.2d 138