Opinion
June 20, 1991
Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).
Defendant was convicted of the shooting death of an acquaintance, following a midnight argument, in a Bronx social club. The People's witnesses observed defendant and the deceased engaged in loud argument, during which time the deceased produced a gun. After the argument subsided, the deceased placed the gun back behind the bar, where he was working. When the deceased turned momentarily to speak to one of the People's witnesses, defendant reached over behind the bar, grabbed the gun, pointed it at the deceased, and fired three shots. The medical examiner's testimony established that the shots were fired from within two feet. Viewing the evidence in a light most favorable to the People (People v Contes, 60 N.Y.2d 620), and giving due deference to the jury's findings of credibility (People v Bleakley, 69 N.Y.2d 490), defendant's guilt was proved beyond a reasonable doubt by overwhelming evidence. Further, as trial counsel never requested submission of lesser-included offenses, any such claim was waived. In any event, no reasonable view of the evidence would have supported submission of lesser-included offenses (CPL 300.50; People v Glover, 57 N.Y.2d 61).
Nor did defendant preserve any challenge either to qualification of the medical examiner or to the substance of her testimony. In any event, we find no basis to disturb the trial court's exercise of discretion in concluding that the medical examiner was competent to render conclusions as to how the wound was inflicted. Finally, defendant failed to carry his heavy burden of demonstrating that he was denied meaningful representation at trial. (People v Baldi, 54 N.Y.2d 137.)
Concur — Murphy, P.J., Carro, Ellerin and Asch, JJ.