Citation Numbers: 292 A.D.2d 841, 740 N.Y.S.2d 740
Filed Date: 3/15/2002
Status: Precedential
Modified Date: 11/1/2024
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered January 29, 1999, convicting defendant after a jury trial of manslaughter in the first degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him of manslaughter in the first degree (Penal Law § 125.20 [1]) in connection with the death of a person with whom, according to the trial testimony of defendant, he had been engaged in a fist fight. Contrary to the contention of defendant, Supreme Court properly refused to suppress an inculpatory statement that he made after invoking his right to counsel. As the court properly found, the statement was not “triggered by police conduct that should reasonably have been anticipated to evoke a statement from defendant” and thus was spontaneous (People v Payne, 233 AD2d 787, 788).
Although the court erred in permitting testimony regarding the nonviolent nature of the victim in the absence of evidence that defendant was aware of the victim’s nonviolent nature (see, People v Lopez, 200 AD2d 767, 768), the error is harmless.
We reject defendant’s contention that the integrity of the grand jury proceeding was impaired because the grand jury was not instructed on circumstantial evidence. “Such an instruction would not have been appropriate because fin a wholly circumstantial case the evidence before the Grand Jury need not exclude to a moral certainty every hypothesis consistent with innocence’ ” (People v Wooten, 283 AD2d 931, 932, lv denied 96 NY2d 943).
By. failing to object to the jury charge, defendant failed to preserve for our review his contention that the court erred in instructing the jury concerning the justification defense (see, CPL 470.05 [2]; People v Robinson, 88 NY2d 1001, 1001-1002), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). The sentence is neither unduly harsh nor severe. We have considered defendant’s remaining contentions and conclude that they are without merit. Present — Pine, J.P., Wisner, Scudder, Gorski and Lawton, JJ.