PEOPLE v. SIMPSON (2006)

 Defendant appeals from a judgment convicting him after a nonjury trial of manslaughter in the first degree (Penal Law § 125.20[1] ) and criminal possession of a weapon in the third degree (§ 265.02 [1] ).   Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence based on the applicability of the justification defense (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Stoby, 4 A.D.3d 766, 771 N.Y.S.2d 623, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478).   We reject the further contention of defendant that the conviction is not supported by legally sufficient evidence because his conduct was reckless, not intentional (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The evidence that defendant stabbed the victim multiple times is legally sufficient to establish that defendant intended to cause serious physical injury to the victim (see People v. Gill, 20 A.D.3d 434, 798 N.Y.S.2d 507).   Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 We reject the contention of defendant that reversal is required because the CPL 710.30 notice did not provide him with adequate notice that his oral statements would be introduced at trial.   The CPL 710.30 notice referred to the oral statements, and the People were not required to “give a verbatim report of the complete oral statement[s] in their CPL 710.30 notice” (People v. Laporte, 184 A.D.2d 803, 804, 584 N.Y.S.2d 662, lv. denied 80 N.Y.2d 905, 588 N.Y.S.2d 831, 602 N.E.2d 239;  see People v. Reinard, 244 A.D.2d 936, 665 N.Y.S.2d 989, lv. denied 91 N.Y.2d 896, 669 N.Y.S.2d 10, 691 N.E.2d 1036).   In any event, “[t]he purpose of the statute will be served when the defendant is provided an opportunity to challenge the admissibility of the statement[s]” (Laporte, 184 A.D.2d at 804, 584 N.Y.S.2d 662).   Here, defendant sought suppression of his statements and had a full opportunity to challenge their admissibility at the suppression hearing (see People v. Rodriguez, 21 A.D.3d 1400, 804 N.Y.S.2d 160;  People v. Sturiale, 262 A.D.2d 1003, 1004, 693 N.Y.S.2d 374, lv. denied 94 N.Y.2d 830, 702 N.Y.S.2d 600, 724 N.E.2d 392).   Contrary to defendant's further contention, Supreme Court properly refused to suppress the oral statements inasmuch as they were not the product of custodial interrogation (see People v. Sachs, 15 A.D.3d 1005, 1006-1007, 788 N.Y.S.2d 743, lv. denied 5 N.Y.3d 768, 801 N.Y.S.2d 263, 834 N.E.2d 1273;  see generally People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239).

 Reversal is not required on the ground that defendant's written waiver of a jury trial is not included in the record on appeal inasmuch as the transcript indicates that defendant executed a written waiver.  “There is a presumption of regularity that attaches to judicial proceedings, and ․ defendant failed to rebut the presumption that a written waiver of the right to a jury trial was executed” (People v. Chacon, 11 A.D.3d 906, 907, 782 N.Y.S.2d 172, lv. denied 3 N.Y.3d 755, 788 N.Y.S.2d 672, 821 N.E.2d 977).   Defendant failed to preserve for our review his contention that he was illegally sentenced as a second felony offender based on the People's failure to file a statement pursuant to CPL 400.21(2) (see People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938;  People v. Beu, 24 A.D.3d 1257, 805 N.Y.S.2d 885, lv. denied 6 N.Y.3d 809, 812 N.Y.S.2d 449, 845 N.E.2d 1280).   In any event, defendant's contention lacks merit.   Defendant expressly waived that filing and thus waived strict compliance with CPL 400.21 (see People v. Santiago, 269 A.D.2d 770, 705 N.Y.S.2d 141;  People v. Hall, 233 A.D.2d 946, 649 N.Y.S.2d 882, lv. denied 89 N.Y.2d 942, 655 N.Y.S.2d 893, 678 N.E.2d 506).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: