PEOPLE v. SIDES (1999)

 County Court properly permitted a prosecution witness to testify that defendant asked him not to testify at trial and threatened him in the hallway outside the courtroom (see, People v. Sherman, 156 A.D.2d 889, 891, 550 N.Y.S.2d 109, lv. denied 75 N.Y.2d 970, 556 N.Y.S.2d 255, 555 N.E.2d 627;  People v. Warner, 126 A.D.2d 788, 790, 510 N.Y.S.2d 292, lv.. denied 69 N.Y.2d 887, 515 N.Y.S.2d 1036, 507 N.E.2d 1106).   The record supports the court's determination that the same witness was familiar with defendant.   Thus, there was no risk that police suggestion could lead to a misidentification, and the identification of defendant through a photo array was confirmatory and the notice and hearing requirements of CPL 710.30 did not apply (see, People v. Rodriguez, 79 N.Y.2d 445, 450, 452, 583 N.Y.S.2d 814, 593 N.E.2d 268;  People v. Kahley, 214 A.D.2d 960, 961, 627 N.Y.S.2d 189).   The verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The court did not abuse its discretion in admitting in evidence a photograph of the murder victim (see, People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).

We reject the contention that the prosecutor improperly cross-examined defense witness Danielle Robinson regarding her failure to come forward sooner with material evidence (see, People v. Perez, 159 A.D.2d 219, 220, 551 N.Y.S.2d 928, lv. denied 76 N.Y.2d 740, 558 N.Y.S.2d 902, 557 N.E.2d 1198;  see, generally, People v. Dawson, 50 N.Y.2d 311, 321, 428 N.Y.S.2d 914, 406 N.E.2d 771).   The contention that the prosecutor also improperly cross-examined another defense witness is not preserved for our review (see, CPL 470.05 [2] ), 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 court properly refused to charge manslaughter in the first and second degrees and criminally negligent homicide as lesser included offenses of intentional murder in the second degree.   There is no reasonable view of the evidence to support a finding that defendant acted recklessly or with criminal negligence rather than intentionally (see, People v. Dalgetty, 242 A.D.2d 859, 663 N.Y.S.2d 457, lv. denied 91 N.Y.2d 871, 668 N.Y.S.2d 569, 691 N.E.2d 641) or that he intended to cause serious physical injury rather than death (see, People v. Kelly, 221 A.D.2d 661, 662, 633 N.Y.S.2d 845, lv. denied 87 N.Y.2d 974, 642 N.Y.S.2d 204, 664 N.E.2d 1267, cert. denied 517 U.S. 1200, 116 S.Ct. 1700, 134 L.Ed.2d 799).

Defendant failed to preserve for our review his contention that the court's Sandoval ruling constituted an abuse of discretion (see, People v. McAllister, 245 A.D.2d 184, 184-185, 665 N.Y.S.2d 897, lv. denied 91 N.Y.2d 894, 669 N.Y.S.2d 9, 691 N.E.2d 1035), 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] ).   We reject the contention that defendant was denied effective assistance of counsel.  “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 A preponderance of the evidence at the probation violation hearing supports the court's finding that defendant violated the terms and conditions of his probation requiring him to undergo an alcohol and drug evaluation and, if recommended, to complete any drug or alcohol program deemed appropriate (see, People v. Raleigh, 184 A.D.2d 869, 585 N.Y.S.2d 118, lv. denied 80 N.Y.2d 908, 588 N.Y.S.2d 834, 602 N.E.2d 242).

Judgment unanimously affirmed.

MEMORANDUM: