People v. Smith

—Judgment, Supreme Court, New York County (Harold J. Rothwax, J.), rendered June 6, 1990, convicting defendant, after jury trial, of murder in the second degree and attempted murder in the second degree, and sentencing him to consecutive terms of 25 years to life and 8 Vs to 25 years, unanimously affirmed.

In view of the overwhelming evidence of defendant’s guilt, we need not reach whether the trial court appropriately exercised its discretion in admitting testimony of defendant’s attempt to commit suicide, within hours of his arrest, as competent circumstantial evidence of consciousness of guilt. (See, People v Patrick, 182 NY 131, 174.) Defendant failed to request a jury instruction regarding evaluation of consciousness of guilt evidence, or to object that such an instruction was not given by the trial court, sua sponte. Thus, defendant failed to preserve the issue for appellate review as a matter of law (CPL 470.05). If we were to review defendant’s argument of error in the interest of justice, we would find it to be, in the circumstances, without merit.

We have reviewed defendant’s additional claims and find them to be without merit. Concur — Milonas, J. P., Ellerin, Ross, Kassal and Rubin, JJ.