PEOPLE v. KOWALEWSKI (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered April 28, 2004, convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 5 to 15 years on the conviction of manslaughter in the second degree, to run consecutively with a determinate term of imprisonment of 15 years on the conviction of criminal possession of a weapon in the second degree.

ORDERED that the judgment is modified, on the law, by directing that the term of imprisonment imposed on the conviction of criminal possession of a weapon in the second degree shall run concurrently with the term of imprisonment imposed on the conviction of manslaughter in the second degree;  as so modified, 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 beyond a reasonable doubt (see People v. Pons, 68 N.Y.2d 264, 267-268, 508 N.Y.S.2d 403, 501 N.E.2d 11;  People v. Licitra, 47 N.Y.2d 554, 559, 419 N.Y.S.2d 461, 393 N.E.2d 456;  People v. Coley, 289 A.D.2d 252, 733 N.Y.S.2d 702;  People v. Johnson, 205 A.D.2d 707, 707-708, 613 N.Y.S.2d 429;  People v. Topsy, 265 A.D.2d 353, 354, 696 N.Y.S.2d 470;  People v. James M., 92 A.D.2d 594, 459 N.Y.S.2d 486).

 Contrary to the defendant's contention, the recording of his call made to the 911 operator immediately after the incident was properly admitted as evidence of consciousness of guilt, which outweighed any alleged prejudice (see generally People v. Yazum, 13 N.Y.2d 302, 246 N.Y.S.2d 626, 196 N.E.2d 263;  see People v. Aguirre, 248 A.D.2d 717, 671 N.Y.S.2d 273).   Moreover, error, if any, in the prosecutor's questions during cross-examination of the defendant regarding the tape recording did not constitute reversible error warranting a new trial where the court sustained objections to the questions, and promptly instructed the jury to disregard the same (see People v. Gibbs, 59 N.Y.2d 930, 932, 466 N.Y.S.2d 296, 453 N.E.2d 525;  People v. Misla, 2 A.D.3d 651, 652, 769 N.Y.S.2d 58).

 Nor did the court err in refusing to instruct the jury with a specific charge on the mistake of fact defense since the court's instructions on the elements of manslaughter and weapons possession adequately covered the defense theory (People v. Williams, 81 N.Y.2d 303, 316-317, 598 N.Y.S.2d 167, 614 N.E.2d 730;  People v. Grimaldi, 6 A.D.3d 722, 775 N.Y.S.2d 190;  People v. Storms, 2 A.D.3d 757, 769 N.Y.S.2d 595;  People v. Banks, 248 A.D.2d 183, 670 N.Y.S.2d 764).

 We agree with the defendant, however, that concurrent sentences, rather than consecutive sentences, were mandated under the circumstances of this case (see Penal Law § 70.25[2];  People v. Hamilton, 4 N.Y.3d 654, 658, 797 N.Y.S.2d 408, 830 N.E.2d 306;  People v. Day, 73 N.Y.2d 208, 212, 538 N.Y.S.2d 785, 535 N.E.2d 1325;  People v. Ivory, 27 A.D.3d 664, 813 N.Y.S.2d 149;  People v. Reyes, 239 A.D.2d 524, 525, 658 N.Y.S.2d 353;  People v. Banks, 208 A.D.2d 759, 760, 617 N.Y.S.2d 796).