Opinion
2002-02612.
Decided June 14, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered March 18, 2002, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diana Villanueva of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, ROBERT W. SCHMIDT, STEVEN W. FISHER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, in response to a juror's note, the trial court properly instructed the jury not to speculate concerning the possibility that the deceased shot and killed himself or was shot and killed by someone other than the defendant ( see People v. Malloy, 55 N.Y.2d 296, cert denied 459 U.S. 847; cf. People v. Leach, A.D.3d [1st Dept, Apr. 15, 2004]).
The defendant's remaining contention is unpreserved for appellate review and we decline to review it in the exercise of our interest of justice jurisdiction.
SANTUCCI, J.P., S. MILLER, SCHMIDT and FISHER, JJ., concur.