PEOPLE v. SHAUT (1999)

Defendant appeals from a judgment convicting him of manslaughter in the first degree (Penal Law § 125.20[1] ) as a lesser included offense of intentional murder, and criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ).  Defendant was sentenced to concurrent terms of incarceration of 121/212 to 25 years and 21/313 to 7 years.

 Defendant has failed to preserve for our review his contention that County Court erred in failing to submit to the jury the question whether defendant was in “his dwelling” and thus under no duty to retreat (see, People v. Kopera, 184 A.D.2d 1007, 584 N.Y.S.2d 245, lv. denied 80 N.Y.2d 905, 588 N.Y.S.2d 831, 602 N.E.2d 239).   In any event, there is no reasonable view of the evidence that, at the time of the incident, the trailer was defendant's dwelling (see, People v. Curry, 233 A.D.2d 879, 880, 649 N.Y.S.2d 861, lv. denied 89 N.Y.2d 1010, 658 N.Y.S.2d 248, 680 N.E.2d 622;  People v. Van Allen, 216 A.D.2d 39, 39-40, 627 N.Y.S.2d 664, lv. denied 86 N.Y.2d 804, 632 N.Y.S.2d 517, 656 N.E.2d 616;  cf., People v. Berk, 88 N.Y.2d 257, 266-267, 644 N.Y.S.2d 658, 667 N.E.2d 308, cert. denied 519 U.S. 859, 117 S.Ct. 160, 136 L.Ed.2d 104).   By all accounts, defendant had moved out six weeks earlier, was no longer paying rent, had removed his “everyday” belongings, had entered into a written lease for an apartment in Bath, did not retain keys to the trailer, and was never permitted inside by his ex-girlfriend.   In his written statement, defendant gave the Bath address as his residence.

 Defendant likewise has not preserved for our review his contention that the court erred in giving a voluntariness instruction (cf., People v. Cefaro, 23 N.Y.2d 283, 288-289, 296 N.Y.S.2d 345, 244 N.E.2d 42).   Although defendant did not request the instruction, he did not ask that it not be given, nor did he object to it once it was given.

 The court did not err in failing to charge manslaughter in the second degree and criminally negligent homicide as lesser included offenses of manslaughter in the first degree.   There is no reasonable view of the evidence that defendant did not intend to cause serious physical injury to the victim (see, People v. Gordon, 223 A.D.2d 372, 636 N.Y.S.2d 317, lv. denied 88 N.Y.2d 936, 647 N.Y.S.2d 170, 670 N.E.2d 454;  People v. Figueroa, 143 A.D.2d 767, 533 N.Y.S.2d 472, lv. denied 73 N.Y.2d 855, 537 N.Y.S.2d 501, 534 N.E.2d 339;  cf., People v. Eagleston, 194 A.D.2d 623, 599 N.Y.S.2d 40;  People v. Tatta, 177 A.D.2d 674, 576 N.Y.S.2d 368, lv. denied 79 N.Y.2d 923, 582 N.Y.S.2d 83, 590 N.E.2d 1211).   There thus is no reasonable view of the evidence that defendant committed the lesser crimes but not the greater (see, People v. Cortez, 184 A.D.2d 571, 584 N.Y.S.2d 609, lv. denied 80 N.Y.2d 902, 588 N.Y.S.2d 827, 602 N.E.2d 235;  People v. Porter, 161 A.D.2d 811, 556 N.Y.S.2d 139, lv. denied 76 N.Y.2d 943, 563 N.Y.S.2d 72, 564 N.E.2d 682;  People v. Vargas, 125 A.D.2d 512, 509 N.Y.S.2d 591, lv. denied 69 N.Y.2d 887, 515 N.Y.S.2d 1036, 507 N.E.2d 1106;  People v. Weems, 105 A.D.2d 763, 481 N.Y.S.2d 414).

We have considered defendant's remaining contentions, including the challenge to the severity of the sentence and to the special information procedure conducted by the court (see, CPL 200.60[3] ), and conclude that they are without merit (see, People v. Santiago, 244 A.D.2d 263, 664 N.Y.S.2d 771, lv. denied 91 N.Y.2d 879, 668 N.Y.S.2d 578, 691 N.E.2d 650;  People v. Reid, 232 A.D.2d 173, 174, 648 N.Y.S.2d 12, lv. denied 90 N.Y.2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063).

Judgment unanimously affirmed.

MEMORANDUM: