PEOPLE v. HUGHES (1997)

Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered November 4, 1994, convicting defendant, after a jury trial, of manslaughter in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of 8 1/3 to 25 years and 5 to 15 years to run consecutively to a term of 2 1/3 to 7 years on the conviction for criminal possession of a weapon in the third degree, unanimously affirmed.

The court's Batson inquiry effectively followed the required three-step protocol and satisfied the substantive Batson principles (People v. Hameed, 88 N.Y.2d 232, 644 N.Y.S.2d 466, 666 N.E.2d 1339, cert denied 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625) Defendant's current challenge to the court's conduct of one portion of the Batson inquiry addresses a matter of “procedural formalism” (see, People v. Payne, 88 N.Y.2d 172, 184, 643 N.Y.S.2d 949, 666 N.E.2d 542), causing no prejudice to defendant.

 The officer's testimony that defendant pointed a gun in the officer's direction while in immediate flight from the scene of the shooting was admissible because it was part of the narrative of events and was inextricably interwoven with the facts of the crimes charged (People v. Gines, 36 N.Y.2d 932, 373 N.Y.S.2d 543, 335 N.E.2d 850;  People v. Campisi, 213 A.D.2d 186, 623 N.Y.S.2d 232, lv. denied 86 N.Y.2d 780, 631 N.Y.S.2d 626, 655 N.E.2d 723).   It was also relevant evidence on the second-degree weapon count as bearing on defendant's intent to use his gun unlawfully against another and undercut defendant's flawed justification defense.   Defendant's claim that a limiting instruction should have been given is unpreserved (see, People v. Bibiloni, 220 A.D.2d 306, 632 N.Y.S.2d 555, lv. denied 87 N.Y.2d 898, 641 N.Y.S.2d 228, 663 N.E.2d 1258), and we decline to review it in the interest of justice because defendant expressly waived such instruction.

 Defendant was properly sentenced to a consecutive term for his conviction of third-degree weapon possession, since this constituted a separate crime, committed through a separate act from the other crimes (see, People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463;  People v. Burgos, 225 A.D.2d 416, 640 N.Y.S.2d 487, lv. denied 88 N.Y.2d 876, 645 N.Y.S.2d 451, 668 N.E.2d 422).   Finally, we do not perceive an abuse of sentencing discretion.

MEMORANDUM DECISION.