PEOPLE v. CONNELLY (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered April 4, 1995, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The trial court correctly declined to submit manslaughter in the second degree as a lesser-included offense of depraved indifference murder since there was no reasonable view of the evidence that the defendant committed the lesser offense without having committed the greater offense (see CPL 300.50[1];  People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376;  People v. James, 19 A.D.3d 616, 797 N.Y.S.2d 129).

The defendant failed to preserve for appellate review his contention that he was denied the constitutional right to present a defense (see People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333;  People v. Paixao, 23 A.D.3d 677, 677-678, 806 N.Y.S.2d 672).   Moreover, the defendant waived any claim that the People's evidence was legally insufficient to prove his guilt of depraved indifference murder (see People v. Soto, 8 A.D.3d 683, 684, 779 N.Y.S.2d 251), and he failed to preserve any claim that all of the evidence was legally insufficient to prove his guilt of depraved indifference murder (see Penal Law § 125.25[2];  CPL 470.05[2];  People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329;  People v. Kingsberry, 11 A.D.3d 561, 562, 782 N.Y.S.2d 857;  People v. Soto, supra ).   To the extent that the defendant seeks review of such an unpreserved claim, we decline to review it in the exercise of our interest of justice jurisdiction.

The defendant did not request a jury charge on the defense of intoxication (see CPL 470.05[2];  People v. Pringle, 270 A.D.2d 291, 704 N.Y.S.2d 844;  People v. Quinones, 251 A.D.2d 517, 673 N.Y.S.2d 597) and, indeed, affirmatively waived that claim.

Contrary to the defendant's contentions, when viewed in its entirety, the trial court's charge adequately conveyed the proper definitions and elements of the defendant's justification defense (see People v. Strong, 256 A.D.2d 427, 683 N.Y.S.2d 275;  People v. Dawes, 175 A.D.2d 174, 573 N.Y.S.2d 900).   In any event, any error in the trial court's failure to elaborate upon the duty to retreat and instruct on the home exception does not warrant reversal since the overwhelming evidence disproved the justification defense (see People v. Jones, 3 N.Y.3d 491, 497, 788 N.Y.S.2d 651, 821 N.E.2d 955).