PEOPLE v. CONGELOSI (1999)

 Defendant was convicted following a jury trial of murder in the second degree (Penal Law § 125.25[2] ), driving while intoxicated as a felony (Vehicle and Traffic Law § 1192[2];  § 1193[1][c] ) and other crimes arising from a head-on motor vehicle accident.   We reject the contention of defendant that the judgment should be reversed pursuant to People v. Williams, 92 N.Y.2d 993, 684 N.Y.S.2d 163, 706 N.E.2d 1187.   County Court's summary refusal to allow defendant to waive his Antommarchi rights (see, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393) does not constitute reversible error because the record establishes that there were no sidebar discussions with prospective jurors.   The contention of defendant that his attempted waiver encompassed that portion of the voir dire held in the jury room is not properly before us because it is raised for the first time in defendant's reply brief (see, People v. Clanton, 204 A.D.2d 810, 812, 612 N.Y.S.2d 83, lv. denied 83 N.Y.2d 965, 616 N.Y.S.2d 18, 639 N.E.2d 758;  see also, People v. Abreu, 248 A.D.2d 124, 669 N.Y.S.2d 560, lv. denied 92 N.Y.2d 846, 677 N.Y.S.2d 77, 699 N.E.2d 437;  People v. Kalaj, 247 A.D.2d 633, 669 N.Y.S.2d 358, lv. denied 92 N.Y.2d 880, 678 N.Y.S.2d 27, 700 N.E.2d 565;  People v. White, 244 A.D.2d 765, 767, 666 N.Y.S.2d 233, lv. denied 91 N.Y.2d 1014, 676 N.Y.S.2d 142, 698 N.E.2d 971).   In any event, that contention is not preserved for our review (see, CPL 470.05[2] ), and 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 properly denied defendant's motion to suppress the statement, “I had a couple of beers”.   Although defendant was handcuffed to a stretcher, he was restrained at the request of medical personnel (see, People v. Cole, 233 A.D.2d 247, 248, 650 N.Y.S.2d 127, lv. denied 89 N.Y.2d 984, 656 N.Y.S.2d 743, 678 N.E.2d 1359), and the statement was made in response to a police officer's remark, “it smells like you have been drinking” (see, People v. Baker, 188 A.D.2d 1012, 592 N.Y.S.2d 161, lv. denied 81 N.Y.2d 967, 598 N.Y.S.2d 768, 615 N.E.2d 225).   We reject defendant's further contention that the court erred in failing to give a voluntariness instruction with respect to that statement.  “A Trial Judge is required to charge on voluntariness only if an issue has been raised at the trial by a proper objection, and evidence sufficient to raise a factual dispute has been adduced either by direct or cross-examination” (People v. Cefaro, 23 N.Y.2d 283, 288-289, 296 N.Y.S.2d 345, 244 N.E.2d 42;  see, People v. Luis, 189 A.D.2d 657, 592 N.Y.S.2d 357;  People v. Goodson, 179 A.D.2d 584, 580 N.Y.S.2d 649, lv. denied 79 N.Y.2d 1001, 584 N.Y.S.2d 456, 594 N.E.2d 950;  People v. Dukes, 156 A.D.2d 959, 549 N.Y.S.2d 255, lv. denied 75 N.Y.2d 918, 555 N.Y.S.2d 37, 554 N.E.2d 74;  People v. Horn, 152 A.D.2d 925, 543 N.Y.S.2d 835, lv. denied 74 N.Y.2d 897, 548 N.Y.S.2d 430, 547 N.E.2d 957).

Defendant further contends that the court abused its discretion in admitting two autopsy photographs in evidence.   Defendant withdrew his objection to one of the photographs, however, thereby waiving his present contention with respect to that photograph, and the other was not so inflammatory as to deprive defendant of a fair trial (see, People v. Upshaw, 242 A.D.2d 548, 549, 662 N.Y.S.2d 268, lv. denied 91 N.Y.2d 882, 668 N.Y.S.2d 580, 691 N.E.2d 652).   We also reject defendant's contention that the verdict is against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's contention concerning the court's failure to give a circumstantial evidence charge is not preserved for our review (see, CPL 470.05[2] ), and 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] ).

Judgment unanimously affirmed.

MEMORANDUM: