The People, etc., respondent, v. Carl Watson, appellant. (2011)

Argued—May 2, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered March 18, 2009, 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.

Where, as here, a defendant charged with a homicide relies on a defense of justification, evidence of the victim's prior criminal acts of violence, which acts the defendant had knowledge, is admissible provided that the acts were reasonably related to the crime with which the defendant was charged (see People v. Reynoso, 73 N.Y.2d 816, 818;  People v. Miller, 39 N.Y.2d 543, 551;  People v. Hudyih, 60 AD3d 1084;  People v. Washington, 44 AD3d 973;  People v. Fore, 33 AD3d 932, 932–933;  People v. Santiago, 211 A.D.2d 734).   The Supreme Court providently exercised its discretion in denying admission of evidence of the decedent's prior specific criminal acts of violence, because the defendant lacked the requisite knowledge of these criminal acts (see People v. Reynoso, 73 N.Y.2d at 819;  People v. Washington, 44 AD3d at 973;  People v. Santiago, 211 A.D.2d 734).

The defendant contends that the Supreme Court should have conducted in camera inquiries of each individual juror to determine his or her ability to continue to serve impartially after an outburst in the courtroom by a family member of the homicide victim to the effect that the defendant was a “murderer” who would “get what was coming to him” (see CPL 270.35[1];  People v. Buford, 69 N.Y.2d 290, 299).   However, this contention is unpreserved for appellate review, since, as the defendant concedes, he never requested such inquiries but instead moved for a mistrial (see CPL § 470.05[2];  People v. Hicks, 6 NY3d 737, 739;  People v. Smith, 49 AD3d 904, 905;  People v. Morales, 36 AD3d 631, 632;  People v. Warren, 27 AD3d 496, 498;  People v. Middleton, 18 AD3d 670, 671).   In any event, the Supreme Court ascertained that there was no indication that any of the jurors were at all influenced or affected by the outburst.   Defense counsel's representation was not rendered constitutionally ineffective by his failure to specifically request an enhanced level of inquiry by the Supreme Court into each juror's individual ability to continue to serve impartially after the outburst (see People v. Colville, 79 AD3d 189, 204).

Contrary to the defendant's contentions, the Supreme Court did not err in directing that the term of imprisonment imposed for criminal possession of a weapon in the second degree was to run consecutively to the term of imprisonment imposed for manslaughter in the first degree.   The record supports the Supreme Court's conclusion that the weapon possession offense arose from an act separate from the acts underlying the manslaughter offense (see Penal Law § 70.25;  People v. Madrid, 52 AD3d 530, 532;  People v. Reyes, 301 A.D.2d 540;  People v. Mack, 242 A.D.2d 543;  People v. Lugo, 236 A.D.2d 560;  People v. Simpson, 209 A.D.2d 281;  cf.  People v. Joseph, 269 A.D.2d 407).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

ANGIOLILLO, J.P., DICKERSON, BELEN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court