Opinion
June 22, 1998
Appeal from the Supreme Court, Kings County (D'Emic, J.).
Ordered that the judgment is affirmed.
During the return trip to Rikers Island after a lineup, the defendant spontaneously said to the detective who was accompanying him, "Get me out of this mess. I'll take a plea of manslaughter and do four years". Contrary to the defendant's contention, this statement was properly admitted as a declaration by the accused from which, either alone or with other evidence, guilt could be inferred ( see, People v. Ragin, 224 A.D.2d 642; Prince, Richardson on Evidence § 8-251 [Farrell 11th ed]). Moreover, the defendant could not have reasonably believed he was conducting a formal plea negotiation with the police detective ( cf., United States v. Baker, 926 F.2d 179, 180).
The defendant's claim of prosecutorial misconduct during the closing argument was not preserved for appellate review ( see, CPL 470.05) and, in any event, is without merit. Here, the bulk of the challenged remarks were in response to the defense summation, which posited the theory of a conspiracy to frame the defendant that was not supported by the trial evidence ( see, People v. Sprinkle, 221 A.D.2d 269; People v. Gathers, 207 A.D.2d 751, 752; People v. Santana, 173 A.D.2d 417).
The defendant also failed to preserve for appellate review the claim that his conviction for assault in the first degree should be reduced to assault in the third degree because there was no medical evidence to establish serious physical injury ( see, CPL 470.05). In any event, viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of assault in the first degree beyond a reasonable doubt. The testimony of the murder victim's brother, who was shot in the leg, was legally sufficient to establish the protracted loss or impairment of the function of his leg ( see, People v. Moreno, 233 A.D.2d 531, 532; Penal Law § 120.10; § 10.00 Penal [10]).
The defendant's sentence was not excessive ( see, People v. Suitte, 90 A.D.2d 80).
Copertino, J.P., Thompson, Sullivan and Friedmann, JJ., concur.