PEOPLE v. WRIGHT (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered September 14, 2005, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, without a hearing (Hanophy, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the motion court properly denied, without conducting a Dunaway hearing (see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824), that branch of his omnibus motion which was to suppress his statements to law enforcement officials on the ground that his arrest was unlawful.   The defendant's supporting papers were conclusory, and failed to set forth factual allegations sufficient to warrant such a hearing (see CPL 710.60[3][b];  People v. Mendoza, 82 N.Y.2d 415, 421-422, 604 N.Y.S.2d 922, 624 N.E.2d 1017;  People v. Alers, 234 A.D.2d 310, 310-311, 651 N.Y.S.2d 537;  People v. Chavous, 204 A.D.2d 475, 475-476, 611 N.Y.S.2d 903). The defendant's contention that the People failed to provide him with information concerning the basis for his arrest is unpreserved for appellate review, as he never raised this argument before the motion court (see People v. Mendoza, 82 N.Y.2d at 432, 604 N.Y.S.2d 922, 624 N.E.2d 1017;  cf. People v. Bryant, 8 N.Y.3d 530, 532, 838 N.Y.S.2d 7, 869 N.E.2d 7).

 The defendant's contention that his constitutional right to confront witnesses was violated when the trial court allowed the People to elicit testimony from police witnesses implying that other nontestifying individuals had identified him as the perpetrator of the crime is without merit.   The testimony was admitted not for the truth of the matter asserted, but to demonstrate how the police investigation evolved and to explain the sequence of events leading to the defendant's apprehension (see Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177;  People v. Reynoso, 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456;  People v. Reyes, 49 A.D.3d 565, 855 N.Y.S.2d 160;  People v. Reynolds, 46 A.D.3d 845, 848 N.Y.S.2d 278;  People v. Dean, 41 A.D.3d 495, 495-496, 837 N.Y.S.2d 714;  People v. Leftenant, 22 A.D.3d 603, 604-605, 804 N.Y.S.2d 327;  People v. Ruis, 11 A.D.3d 714, 714-715, 784 N.Y.S.2d 558).

 The defendant contends that the prosecutor's summation deprived him of a fair trial.   However, most of the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the defense counsel's summation (see People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Dick, 48 A.D.3d 697, 852 N.Y.S.2d 334;  People v. Simon, 34 A.D.3d 852, 823 N.Y.S.2d 906).  “To the extent that the prosecutor may have exceeded the bounds of permissible rhetorical comment, any error was harmless” (People v. Carter, 36 A.D.3d 624, 831 N.Y.S.2d 87;  see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 The trial court did not err in refusing to charge manslaughter in the second degree as a lesser-included offense of murder in the second degree.   Viewing the evidence in the light most favorable to the defendant (see People v. Randolph, 81 N.Y.2d 868, 869, 597 N.Y.S.2d 630, 613 N.E.2d 536;  People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225), no reasonable view of the evidence would support a finding that the defendant acted recklessly when he shot the decedent (see CPL 300.50 [1];  People v. Cardwell, 251 A.D.2d 342, 343, 673 N.Y.S.2d 1013;  People v. Moran, 172 A.D.2d 779, 569 N.Y.S.2d 154;  People v. Carosella, 118 A.D.2d 865, 865-866, 500 N.Y.S.2d 349;  People v. Smith, 87 A.D.2d 640, 641-642, 448 N.Y.S.2d 211;  cf. People v. Morel, 213 A.D.2d 497, 497-498, 624 N.Y.S.2d 40).

 The sentencing court providently exercised its discretion in denying the defendant's application, made at sentencing, to adjourn the sentencing (see People v. Perea, 27 A.D.3d 960, 961, 812 N.Y.S.2d 673;  People v. Davila, 238 A.D.2d 625, 626, 655 N.Y.S.2d 698;  People v. Bonadie, 151 A.D.2d 686, 686-687, 542 N.Y.S.2d 744;  People v. Santos, 109 A.D.2d 901, 486 N.Y.S.2d 792).

The defendant's remaining contentions either are without merit or relate to harmless error.