The People, etc., respondent, v. Jose Tavarez, appellant. (2010)

Argued-January 7, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered September 12, 2007, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim that the Supreme Court erred in submitting manslaughter in the first degree (see Penal Law § 125.20[1] ) as a lesser-included offense of murder in the second degree (see Penal Law § 125.25[1] ) is waived inasmuch as the defendant did not object to the submission of first-degree manslaughter before the jury retired to deliberate (see CPL 300.50 [1];  People v. Mullins, 13 AD3d 397;  People v. Dunbar, 145 A.D.2d 501, 502).   In any event, a reasonable view of the evidence supports a finding that the defendant intended to cause serious physical injury rather than death (see CPL 300.50[1];  People v. Glover, 57 N.Y.2d 61, 64;  People v. Pelsey, 60 AD3d 1088;  People v. Batts, 244 A.D.2d 345;  People v. Davis, 181 A.D.2d 411, 411-412).

The defendant's remaining contention is not preserved for appellate review and, in any event, is without merit.

FISHER, J.P., FLORIO, BELEN and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court