PEOPLE v. HAYES IV (2010)

Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20[1] ). Defendant failed to preserve for our review his contention that the prosecutor's remark to a prospective juror during jury selection concerning defendant's motive for approaching the police tainted the panel of prospective jurors and that the prospective juror in question should have been disqualified (see CPL 470.05 [2] ). Defendant also failed to preserve for our review his contention that County Court violated CPL 270.05(2) in conducting the jury selection (see generally People v. Martin, 60 A.D.3d 871, 875 N.Y.S.2d 541, lv denied 12 N.Y.3d 917, 884 N.Y.S.2d 698, 912 N.E.2d 1079; People v. Dickens, 48 A.D.3d 1034, 849 N.Y.S.2d 837, lv denied 10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Contrary to defendant's contention, the court did not abuse its discretion in admitting photographs of the autopsy in evidence (see People v. Williams, 28 A.D.3d 1059, 1060, 813 N.Y.S.2d 606, affd 8 N.Y.3d 854, 831 N.Y.S.2d 367, 863 N.E.2d 588; see generally People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278). “Photographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110), and that is not the case here. The photographs were properly admitted in evidence to assist the jury in understanding the Medical Examiner's testimony concerning the extent of the victim's stab wound. The further contention of defendant that the verdict sheet was confusing and improper because it did not mention his justification defense is without merit (see People v. Bolling, 49 A.D.3d 1330, 1332, 853 N.Y.S.2d 803; People v. Dempsey, 177 A.D.2d 1018, 578 N.Y.S.2d 290, lv denied 79 N.Y.2d 946, 583 N.Y.S.2d 200, 592 N.E.2d 808; People v. Campbell, 160 A.D.2d 717, 553 N.Y.S.2d 471, lv denied 76 N.Y.2d 732, 558 N.Y.S.2d 894, 557 N.E.2d 1190). The verdict sheet complied with CPL 310.20(2), which allows the court to give the jury a written list “containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon.”

Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence based on the People's failure to disprove his justification defense beyond a reasonable doubt (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. McClellan, 49 A.D.3d 1203, 856 N.Y.S.2d 351, lv denied 11 N.Y.3d 791, 866 N.Y.S.2d 617, 896 N.E.2d 103). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We agree with defendant, however, that the sentence is unduly harsh and severe. Thus, as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ), we modify the judgment by reducing the sentence to a determinate term of incarceration of 10 years. We have examined defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence to a determinate term of incarceration of 10 years and as modified the judgment is affirmed.

MEMORANDUM: