Opinion
January 22, 1991
Appeal from the County Court, Westchester County (Nicolai, J.).
Ordered that the judgment is affirmed.
We find no merit to the defendant's claim that the hearing court erred in failing to suppress the statement he made to the police detective at police headquarters less than six hours after his arrest and immediately after he was advised of his Miranda rights. The defendant did not testify at the hearing and no evidence was adduced to support his contention that the statement was involuntarily given on constraint of prior statements the defendant had made (see, People v Tanner, 30 N.Y.2d 102; People v Shipman, 156 A.D.2d 494).
The evidence at trial established that on July 17, 1987, at about 1:30 P.M. the defendant and three cohorts set out from New York City for Bohlman Towers, a housing project in Peekskill, for the purpose of selling crack. Later that evening, the defendant and his cohorts argued in the street with the two victims, Tinsley and Cannaday, concerning how and if the two were going to be paid for their participation in the illegal drug sale activities of that day. As the four men turned to leave, Tinsley grabbed a tree branch and hit the defendant from behind, across the shoulder. The defendant turned around, pulled out a gun and shot him. Then an unarmed Cannaday ran towards the defendant screaming, "that's my brother." The defendant shot him also. Cannaday continued to proceed towards the defendant, who shot him again. At this point, Cannaday was at least eight feet away from the defendant. Under these circumstances, the trial court correctly refused to charge manslaughter in the second degree as a lesser-included offense since there is no view of the evidence which would support a finding that the defendant acted in a merely reckless manner regarding either shooting (see, People v Green, 143 A.D.2d 768; People v Tisdale, 129 A.D.2d 749; People v Mills, 105 A.D.2d 759).
There is also no evidence to support the defendant's contention that when he shot Cannaday he actually believed that he was being threatened with the imminent use of deadly physical force or that his reactions were those of a reasonable man acting in self-defense. Accordingly, the court properly declined to instruct the jury on the defense of justification in connection with the second shooting (see, People v Reynoso, 73 N.Y.2d 816; People v Frazier, 156 A.D.2d 583).
The defendant further contends that the trial court erred in admitting testimony concerning his alleged participation in prior uncharged crimes. However, it is well established that such evidence is admissible to complete the narrative of the crime charged and may also be received in evidence if it is inextricably intertwined with the crime charged (see, People v Vails, 43 N.Y.2d 364; People v Santiago, 158 A.D.2d 629). We conclude that in the case at bar, the evidence of the prior uncharged drug sales in which the defendant, his cohorts, and the victims were participants on the day of the shootings was admissible as background material (see, People v Escobar, 131 A.D.2d 500). Moreover, the court's limiting instructions served to prevent any possible prejudice resulting from the admission of that evidence.
The imposition of consecutive sentences for the two manslaughter convictions was proper since it was the defendant's separate and distinct acts which caused the deaths of Tinsley and Cannaday (see, People v Brathwaite, 63 N.Y.2d 839; People v Taylor, 155 A.D.2d 630; People v Alvarez, 135 A.D.2d 543). Under the circumstances of this case, the sentence imposed was not excessive (see, People v Suitte, 90 A.D.2d 80), and we decline to reduce it in the exercise of our interest of justice jurisdiction.
We have examined the defendant's remaining contentions and find them to be unpreserved for appellate review or without merit. Brown, J.P., Rosenblatt, Miller and Ritter, JJ., concur.