Opinion
September 30, 1993
Appeal from the Supreme Court, New York County (Edwin Torres, J.).
By requesting submission of manslaughter in the second degree as a lesser included offense of murder in the second degree, defendant necessarily conceded, if indeed he did not affirmatively argue, that such a charge was supported by a reasonable view of the evidence, thereby waiving his present argument that while the evidence might have supported a theory that he had intentionally shot the deceased, it was legally insufficient to show that he had acted recklessly (People v Ford, 66 N.Y.2d 428, 440). The court did not err in submitting the missing witness charge, and it makes no difference that the witness might have been available to the prosecution (see, People v Ramirez, 73 A.D.2d 567). The affirmance of defendant's prior violent felony conviction, by a Connecticut appellate court (State v Maldonado, 193 Conn. 350, 478 A.2d 581) collaterally estops his present claim that the Connecticut trial court had violated his Federal constitutional right of confrontation (see, e.g., People v Abbott, 113 Misc.2d 766, 777-778, affd 178 A.D.2d 281, lv denied 79 N.Y.2d 918; People v Di Giacomo, 96 A.D.2d 1127).
We have considered defendant's remaining contentions and find them to be unpreserved or without merit.
Concur — Murphy, P.J., Sullivan, Kupferman and Nardelli, JJ.