PEOPLE v. LLUVERES (2005)

 Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the second degree (Penal Law § 125.15[1] ) and criminal possession of a weapon in the third degree (§ 265.02[4] ).   Contrary to the contention of defendant, he was not deprived of a fair trial by County Court's justification charge (see generally § 35.15).   The jurors were instructed to place themselves in the position of defendant to consider how the situation appeared to him and to determine whether his belief about the situation was reasonable under all of the circumstances, and thus, the charge as a whole adequately conveyed the proper standard to the jury (see People v. Goetz, 68 N.Y.2d 96, 114, 506 N.Y.S.2d 18, 497 N.E.2d 41;  see generally People v. Adams, 69 N.Y.2d 805, 806, 513 N.Y.S.2d 381, 505 N.E.2d 946;  People v. Gittens, 279 A.D.2d 291, 719 N.Y.S.2d 230, lv. denied 96 N.Y.2d 829, 729 N.Y.S.2d 449, 754 N.E.2d 209).   In any event, we conclude that there is no “substantial likelihood that an elaboration of the justification charge would have resulted in a contrary verdict” (People v. Norwood, 133 A.D.2d 423, 424, 519 N.Y.S.2d 408).

 We agree with defendant that it was error for the forensic pathologist to testify that the manner of the victim's death was a homicide (see People v. Eberle, 265 A.D.2d 881, 881-882, 697 N.Y.S.2d 218;  People v. Emmick, 136 A.D.2d 892, 894, 525 N.Y.S.2d 77), but we conclude that the error is harmless (see People v. Burse, 234 A.D.2d 950, 951, 652 N.Y.S.2d 439, lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 863, 681 N.E.2d 1310;  see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).   There was no dispute that the death was a homicide.   Defendant acknowledged that he “pulled the trigger” and killed the victim;  his theory was that the homicide was justified because he was acting in self-defense.   We further agree with defendant, as conceded by the People, that the People improperly delayed turning over Rosario material.   We conclude, however, that defendant failed to demonstrate substantial prejudice, and thus the court did not abuse its discretion in denying defendant's motion for a mistrial and reversal is not warranted (see CPL 240.75;  People v. Felix-Torres, 281 A.D.2d 649, 651, 721 N.Y.S.2d 415, lv. dismissed and denied 97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400;  People v. Goncalves, 239 A.D.2d 923, 659 N.Y.S.2d 596, lv. denied 91 N.Y.2d 873, 668 N.Y.S.2d 571, 691 N.E.2d 643).

 Defendant's contention concerning the use of a witness's preliminary hearing testimony during trial is not preserved for our review (see CPL 470.05 [2];  People v. Briggs, 190 A.D.2d 995, 996-997, 593 N.Y.S.2d 622, lv. denied 81 N.Y.2d 1011, 600 N.Y.S.2d 199, 616 N.E.2d 856), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15[6][a] ).   The sentence is not unduly harsh or severe.   We have examined defendant's remaining contention and conclude that it is lacking in merit.

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

MEMORANDUM: