Opinion
March 7, 1995
Appeal from the Supreme Court, Bronx County (Elbert Hinkson, J.).
Defendant was convicted of the death of his child, a two-year old baby. During a fight with the mother of the baby, defendant, in a rage, grabbed the baby out of her arms and threw the baby repeatedly against a wall. Medical evidence, corroborating the mother's testimony, indicated that the baby received several head injuries which resulted in death. Medical evidence also established internal bleeding from liver damage, which corroborated the mother's testimony that the defendant periodically punched the baby in the stomach.
There was no reasonable view of the evidence (CPL 300.50) that the defendant could have committed manslaughter in the second degree but not depraved indifference murder. Thus, it was not error for the court to decline to submit to the jury the lesser included offense. This was not an incident in which the defendant threw a baby against a wall once; defendant's conduct could only be characterized as depraved and wanton so that the evidence would not have supported a theory of mere recklessness.
Defendant failed to preserve his present challenge to the court's instruction (People v. Jackson, 76 N.Y.2d 908). Nor did defendant preserve the present constitutional claim (People v Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914). Since, the charge as an entirety conveyed the appropriate principles of law (People v. Coleman, 70 N.Y.2d 817), we decline to review in the interest of justice. Nor has defendant preserved any challenge to introduction of evidence concerning prior beatings by the defendant, either as to the substantive evidence (People v Garrastequi, 189 A.D.2d 574, 575-576, lv denied 81 N.Y.2d 885), or to the court's failure to provide a limiting instruction (People v. LaFrance, 182 A.D.2d 598, 600, lv denied 80 N.Y.2d 905). In any event, the evidence would be admissible under the authority of People v. Steinberg ( 170 A.D.2d 50, 73-74, affd 79 N.Y.2d 673).
Defendant's hearsay claim was not preserved by specific objection (People v. Clarke, 81 N.Y.2d 777) and we decline to review in the interest of justice. Were we to review the claim, we would find, in view of the overwhelming evidence, any error was harmless. Nor has defendant preserved any constitutional (People v. Fleming, 70 N.Y.2d 947) claim challenging evidence of pre-arrest silence, his untimely motion for a mistrial being inadequate in this regard (People v. Bruen, 136 A.D.2d 648, 649). We decline to review this claim in the interest of justice.
We have examined defendant's remaining claims and find them to be meritless.
Concur — Rosenberger, J.P., Ellerin, Wallach and Tom, JJ.