PEOPLE v. SPERINGO

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

The PEOPLE of the State of New York, Respondent, v. Frank SPERINGO, Defendant-Appellant.

Decided: February 23, 1999

SULLIVAN, J.P., ELLERIN, WILLIAMS and WALLACH, JJ. Ellen Sue Handman, for Respondent. Perry S. Reich, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered November 1, 1996, convicting defendant, after a jury trial, of manslaughter in the second degree and assault in the third degree, and sentencing him to concurrent terms of 4 to 12 years and 1 year, respectively, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There was ample evidence of recklessness, including evidence that defendant, an off-duty police officer, entered a restaurant inebriated, precipitated a fight, drew his weapon, and pointed it at the head of a patron, whereupon the gun discharged as people attempted to wrest it away from him (see, People v. Chrysler, 85 N.Y.2d 413, 626 N.Y.S.2d 18, 649 N.E.2d 1162;  People v. Licitra, 47 N.Y.2d 554, 558-59, 419 N.Y.S.2d 461, 393 N.E.2d 456).   The jury could reasonably reject defendant's version of the events.

 The court properly admitted into evidence sections of the Police Department Patrol Guide recommending against the carrying of a weapon while off-duty in places where alcoholic beverages were being consumed, since this evidence was relevant to defendant's awareness of a risk attendant with that act, and the Patrol Guide did not impose a standard higher than the recklessness standard that the People were required to prove (see, Danbois v. New York Cent. R.R. Co., 12 N.Y.2d 234, 238 N.Y.S.2d 921, 189 N.E.2d 468).   Defendant's remaining arguments concerning this evidence are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.

 Defendant's challenges to the People's summation are likewise unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the challenged comments were responsive to the defense summation and were based on the evidence, and that, since defendant presented a defense, the People properly commented on defendant's failure to call the father of his girlfriend (see, People v. Tankleff, 84 N.Y.2d 992, 994-95, 622 N.Y.S.2d 503, 646 N.E.2d 805;  People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724).

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.