People v. Russell ( 1992 )

Judgment, Supreme Court, Bronx County (Lawrence J. Tonetti, J.), rendered September 7, 1990, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a second felony offender, to a prison term of 5 to 10 years, unanimously affirmed.

Defendant’s argument that the trial court erred in not instructing the jury on the "voluntariness” of his statements is unpreserved (CPL 470.05; see, People v Cerrato, 24 NY2d 1, 10), and we decline to review it. If we were to review it in the interest of justice, we would find it to be without merit, there being no evidence that defendant was so intoxicated that he did not understand the meaning of his statements (People v Schompert, 19 NY2d 300, 305-306). Indeed, defendant himself testified that he was not intoxicated when he made the statement. We have considered defendant’s argument that the sentence is excessive and find it to be without merit, particularly in view of the brutality of the shooting assault of which defendant was convicted. Concur — Sullivan, J. P., Carro, Rosenberger, Wallach and Smith, JJ.