PEOPLE v. GILL (2005)

Appeal by the defendant from a judgment of the County Court, Westchester County (Smith, J.), rendered September 19, 2001, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, 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.

 The hearing court properly declined to suppress the defendant's statements to law enforcement officials.   The defendant, who had a history of prior arrests, was informed of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), understood them, and impliedly waived them by continuing to speak with the police (see People v. Sirno, 76 N.Y.2d 967, 968, 563 N.Y.S.2d 730, 565 N.E.2d 479;  People v. Davis, 55 N.Y.2d 731, 733, 447 N.Y.S.2d 149, 431 N.E.2d 634;  People v. Hastings, 282 A.D.2d 545, 546, 722 N.Y.S.2d 759;  People v. Strother, 234 A.D.2d 571, 572, 652 N.Y.S.2d 56;  People v. Scott, 154 A.D.2d 719, 547 N.Y.S.2d 253;  People v. Giano, 143 A.D.2d 1040, 1041, 533 N.Y.S.2d 574).

 Where a defendant requests the submission of a lesser-included offense to the jury, the defendant will not be heard to argue on appeal that the evidence was legally insufficient to support this charge (see People v. Shaffer, 66 N.Y.2d 663, 665, 495 N.Y.S.2d 965, 486 N.E.2d 823;  People v. Legacy, 4 A.D.2d 453, 167 N.Y.S.2d 93).   In any event, 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 Penal Law § 125.20[1] ).   The evidence that the victim sustained several stab wounds to the chest, including two that entered her heart and lung, and one that went through the heart into the esophagus, established the defendant's intent to cause serious physical injury (see People v. Barnes, 265 A.D.2d 169, 695 N.Y.S.2d 362;  People v. Angel, 185 A.D.2d 356, 358, 586 N.Y.S.2d 622).   Whether his alleged use of cocaine negated the element of intent was a matter for the jury to decide (see People v. Jagoo, 2 A.D.3d 750, 768 N.Y.S.2d 650;  People v. Angel, supra;  People v. Goodman, 152 A.D.2d 705, 706, 544 N.Y.S.2d 163).

The defendant failed to demonstrate that he was substantially prejudiced by any allegedly improper comments by the prosecutor on summation (see People v. White, 196 A.D.2d 641, 601 N.Y.S.2d 355), or that the trial court's instructions failed to cure any prejudice (see People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668;  People v. Cabrera, 11 A.D.3d 552, 553, 782 N.Y.S.2d 646).