PEOPLE v. WASHINGTON (2007)

Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20[1] ), criminal possession of a weapon in the second degree (former § 265.03[2] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   The verdict finding defendant guilty of manslaughter in the first degree and rejecting his justification defense is not against the weight of the evidence (see People v. Williams, 291 A.D.2d 897, 898, 737 N.Y.S.2d 737, lv. denied 97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to defendant's further contention, Supreme Court properly refused to suppress items of physical evidence seized from the vehicle in which defendant had been a passenger, defendant's statement to a police officer and the identification of defendant by a witness resulting from a showup identification procedure.   Defendant was a mere passenger in the vehicle and thus lacked standing to challenge the seizure of items of physical evidence from it (see People v. White, 232 A.D.2d 437, 438, 648 N.Y.S.2d 639, lv. denied 89 N.Y.2d 947, 655 N.Y.S.2d 898, 678 N.E.2d 511), and the seizure of those items was not the result of the allegedly illegal detention of defendant, who was outside the parked vehicle when the police officer approached and detained him (see People v. Laws, 208 A.D.2d 317, 322, 623 N.Y.S.2d 216).   In any event, the police officer had reasonable suspicion to conduct an investigatory detention of defendant and defendant's spontaneous statement was therefore admissible (see People v. Oglesby, 15 A.D.3d 888, 889, 788 N.Y.S.2d 793, lv. denied 4 N.Y.3d 855, 797 N.Y.S.2d 429, 830 N.E.2d 328), as was the identification of the witness resulting from the showup identification procedure (see People v. Ramos, 34 A.D.3d 1363, 824 N.Y.S.2d 508).

Also contrary to defendant's contention, the court properly instructed the jury with respect to the defense of justification (cf. People v. Castro, 131 A.D.2d 771, 773-774, 516 N.Y.S.2d 966).   Defendant failed to preserve for our review his further contention that the court erred in allowing deliberations to continue after the jury asked a court deputy to demonstrate the sound made by a weapon found at the crime scene and the court deputy agreed to do so (see CPL 470.05[2];  People v. Kelly, 5 N.Y.3d 116, 119-120, 799 N.Y.S.2d 763, 832 N.E.2d 1179).   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 did not abuse its discretion in refusing to admit in evidence the victim's certificates of conviction (see generally People v. Miller, 39 N.Y.2d 543, 548-553, 384 N.Y.S.2d 741, 349 N.E.2d 841;  People v. Santiago, 211 A.D.2d 734, 622 N.Y.S.2d 70, lv. denied 85 N.Y.2d 942, 627 N.Y.S.2d 1004, 651 N.E.2d 929).   Contrary to defendant's further contention, the record establishes that the People complied with CPL 200.60(3)(a) in connection with the charge of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ).   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: