Opinion
April 18, 1991
Appeal from the Supreme Court, Bronx County, Dominic Massaro, J.
Defendant's conviction arises out of the shooting death of Calvin Patch on October 9, 1988. Evidence was adduced at trial to show that just before the shooting defendant and Mr. Patch were arguing over Mr. Patch's relationship with defendant's ex-paramour. The woman was the People's primary witness.
Defendant's claims of prosecutorial misconduct during cross-examination and summation were not preserved for appellate review by appropriate objection (CPL 470.05; see also, People v. Thomas, 50 N.Y.2d 467). In any event, cross-examination of defendant was proper in that it was responsive to defendant's testimony, which contradicted the version of the events testified to by the People's primary witness including the circumstances of defendant's presence at the scene. (See, People v. Rivera, 159 A.D.2d 229, lv denied 75 N.Y.2d 969.) Additionally, the prosecutor's summation consisted essentially of fair comment on the evidence and appropriate response to defense counsel's summation remarks (see, e.g., People v. Fielding, 158 N.Y. 542). Any possible prejudice arising from the prosecutor's passing comment that the victim may have survived if defendant had summoned help, as he said he would, was appropriately dispelled by the court's instructions to the jury that they should not engage in speculation, or allow passion or sympathy to enter into their deliberations, which instructions presumably were followed by the jury (see, e.g., People v. Rodriguez, 103 A.D.2d 121).
We reject defendant's claim that he was denied a fair trial because the court failed to state, before summations that the defense counsel's request for jury charges on the lesser included offenses of manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide was granted. Although the claim was not preserved by appropriate objection (CPL 470.05), it is clear that the entire weight of the defense case was placed upon a justification theory. Defendant has shown neither prejudice, nor that the defense summation would have been altered in any manner if defense counsel had been informed earlier that the court had granted the request for jury charges on the lesser included offenses (see, People v. Jackson, 166 A.D.2d 356).
Defendant's claim that the trial court erred in not giving a circumstantial evidence charge likewise was not preserved for appellate review by appropriate objection (CPL 470.05) and in any event is meritless. The People's primary witness offered direct testimony concerning the circumstances of the shooting and as inferences to be drawn were clear, strong, and logical, a circumstantial evidence charge was not required. (See, e.g., People v. Alexander, 153 A.D.2d 507, affd 75 N.Y.2d 979.)
Concur — Murphy, P.J., Carro, Kupferman and Smith, JJ.