PEOPLE v. MALLEN (1998)

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered December 11, 1995, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).  The People proved that the defendant, although drinking heavily prior to the murder, was able to form the requisite intent to kill, and there is no basis in the record for disturbing the jury's verdict (see, People v. Butler, 84 N.Y.2d 627, 620 N.Y.S.2d 775, 644 N.E.2d 1331;  People v. Zambrana, 158 A.D.2d 736, 552 N.Y.S.2d 181;  People v. Goodman, 152 A.D.2d 705, 544 N.Y.S.2d 163).

 The defendant contends that the trial court erred in not submitting to the jury the crime of manslaughter in the first degree as a lesser-included offense of the crime of murder in the second degree.   However, a defendant who, as here, does not request the submission of a lesser-included offense cannot claim that the court's failure to so charge was error (see, People v. Goros, 224 A.D.2d 444, 638 N.Y.S.2d 107).

 Contrary to the defendant's contention, the trial court correctly weighed the competing factors when it ruled that it would allow the prosecutor to inquire into the defendant's prior conviction for attempted resisting arrest (see, People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458, 451 N.E.2d 216;  People v. Williams, 56 N.Y.2d 236, 451 N.Y.S.2d 690, 436 N.E.2d 1292;  People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413).   Questions concerning other crimes are not automatically precluded simply because the manner in which the prior crime was committed is similar to the facts of the instant crime (People v. Rahman, 46 N.Y.2d 882, 414 N.Y.S.2d 683, 387 N.E.2d 614;  People v. Hendrix, 44 N.Y.2d 658, 405 N.Y.S.2d 31, 376 N.E.2d 192;  People v. Roman, 190 A.D.2d 831, 593 N.Y.S.2d 828;  People v. Carter, 212 A.D.2d 722, 622 N.Y.S.2d 804).   Accordingly, the trial court's Sandoval ruling was not an improvident exercise of discretion (see, People v. Pavao, supra;  People v. Mackey, 49 N.Y.2d 274, 425 N.Y.S.2d 288, 401 N.E.2d 398).

MEMORANDUM BY THE COURT.