PEOPLE v. TOPOLSKI

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Michael R. TOPOLSKI, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ. Linda M. Campbell, Syracuse, for Defendant-Appellant. Michael R. Topolski, Defendant-Appellant Pro Se. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ).   Contrary to defendant's contention, Supreme Court properly refused to charge manslaughter in the second degree as a lesser included offense of murder in the second degree inasmuch as there is no reasonable view of the evidence that defendant acted recklessly and not intentionally (see People v. Collins, 290 A.D.2d 457, 458, 736 N.Y.S.2d 109, lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358;  People v. Mosher, 172 A.D.2d 1046, 571 N.Y.S.2d 406, lv. denied 78 N.Y.2d 971, 574 N.Y.S.2d 951, 580 N.E.2d 423;  see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376;   People v. Sussman, 298 A.D.2d 205, 748 N.Y.S.2d 552, lv. denied 99 N.Y.2d 585, 755 N.Y.S.2d 721, 785 N.E.2d 743).   Also contrary to defendant's contention, the court properly refused to suppress the oral statement made by defendant before he received his Miranda warnings.   The oral statement at issue was made when an officer asked defendant how he had sustained certain facial injuries.   Under the circumstances, the court properly concluded that the oral statement was admissible because it was in response to questioning that was “similar to pedigree question[ing] or [questioning] necessary for providing for defendant's physical [condition and] needs and clearly [was] not for the purpose of attempting to inculpate [defendant]” (People v. Greenleaf, 222 A.D.2d 838, 840, 634 N.Y.S.2d 892, lv. denied 87 N.Y.2d 973, 642 N.Y.S.2d 202, 664 N.E.2d 1265;  see People v. Youngblood, 294 A.D.2d 954, 742 N.Y.S.2d 762, lv. denied 98 N.Y.2d 704, 747 N.Y.S.2d 423, 776 N.E.2d 12;   People v. Hester, 161 A.D.2d 665, 666, 556 N.Y.S.2d 97, lv. denied 76 N.Y.2d 858, 560 N.Y.S.2d 998, 561 N.E.2d 898).   Moreover, the court properly refused to suppress the written statements made by defendant after he waived his Miranda rights.   There is no indication in the record that defendant's statements were not voluntarily made (see People v. May, 263 A.D.2d 215, 219, 702 N.Y.S.2d 393, lv. denied 94 N.Y.2d 950, 710 N.Y.S.2d 7, 731 N.E.2d 624;  People v. Howard, 256 A.D.2d 1170, 683 N.Y.S.2d 445, lv. denied 93 N.Y.2d 874, 689 N.Y.S.2d 436, 711 N.E.2d 650;  People v. Husbands, 171 A.D.2d 756, 567 N.Y.S.2d 309, lv. denied 78 N.Y.2d 923, 573 N.Y.S.2d 475, 577 N.E.2d 1067;  see generally Mincey v. Arizona, 437 U.S. 385, 396-402, 98 S.Ct. 2408, 57 L.Ed.2d 290;  People v. Anderson, 42 N.Y.2d 35, 38-41, 396 N.Y.S.2d 625, 364 N.E.2d 1318).   The sentence is not unduly harsh or severe.   We have reviewed the remaining contentions of defendant in his main brief and conclude that they are lacking in merit.

 With respect to the contentions raised in defendant's pro se supplemental brief, we conclude that the court did not err in admitting evidence of an uncharged crime, i.e., his altercation with his father.   The People adduced that evidence to establish defendant's consciousness of guilt, and the probative value of the evidence outweighed its prejudicial effect (see generally People v. Hudy, 73 N.Y.2d 40, 54-55, 538 N.Y.S.2d 197, 535 N.E.2d 250;  People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59).   Further, the court did not err in permitting the prosecutor to cross-examine defendant's wife concerning her prior inconsistent statements (see generally People v. Bornholdt, 33 N.Y.2d 75, 88, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied sub nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109).   Defendant failed to preserve for our review his contention that the court erred in allowing the prosecutor to present identification testimony despite the fact that the witness was not listed in the CPL 710.30 notice (see CPL 470.05[2] ).   In any event, any error in the admission of that testimony is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   Also contrary to defendant's contention, the court properly refused to suppress evidence as the fruit of an alleged Payton violation (see Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639).   The police had knowledge of exigentcircumstances justifying their entry into the motel room and the arrest of defendant therein without first applying for a warrant (see People v. Jackson, 203 A.D.2d 956, 956-957, 612 N.Y.S.2d 96, lv. denied 84 N.Y.2d 827, 617 N.Y.S.2d 147, 641 N.E.2d 168;  see also People v. Burr, 124 A.D.2d 5, 8, 510 N.Y.S.2d 949, affd. 70 N.Y.2d 354, 520 N.Y.S.2d 739, 514 N.E.2d 1363, cert. denied 485 U.S. 989, 108 S.Ct. 1294, 99 L.Ed.2d 505).   We have considered the remaining contentions raised in defendant's pro se supplemental brief and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: