PEOPLE v. NESMITH

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Terrence NESMITH, Defendant-Appellant.

Decided: January 11, 2007

TOM, J.P., MAZZARELLI, ANDRIAS, MARLOW, GONZALEZ, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Carol A. Zeldin of counsel), for appellant. Terrence Nesmith, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 5, 2004, convicting defendant of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 25 and 15 years, respectively, unanimously affirmed.

The trial court properly charged manslaughter in the first degree as a lesser included offense of murder in the second degree since there was a reasonable view of the evidence that defendant intended to cause serious physical injury as opposed to death (see People v. Butler, 57 N.Y.2d 664, 454 N.Y.S.2d 70, 439 N.E.2d 879 [1982], revg. on dissenting op. of Sandler, J. 86 A.D.2d 811, 814-815, 452 N.Y.S.2d 582 [1982] ).   We note that defendant's conversation with a People's witness shortly before the incident could be reasonably interpreted as expressing an intent to cause serious injury but not death.

Defendant's pro se Confrontation Clause argument is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it.   We have considered and rejected defendant's remaining pro se claims.

We perceive no basis for reducing the sentence.