PEOPLE v. MOYLER

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

PEOPLE of The State of New York, Respondent, v. Damon MOYLER, Appellant.

Decided: December 31, 1998

Present:  DENMAN, P.J., PINE, PIGOTT, Jr., CALLAHAN and BOEHM, JJ. Lisa Allen, Amherst, for Appellant. Matthew J. Murphy, III by Timothy Murphy, District Attorney's Office, Lockport, for Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of manslaughter in the first degree (Penal Law § 125.20[1] ).   Defendant contends that County Court failed to give a definitive Sandoval ruling.   We disagree.   The court refused to allow the prosecutor to question defendant about a particular crime unless the prosecutor “sort[ed] out” any confusion between two convictions from 1986.   That ruling was sufficiently definite (cf., People v. Patterson, 203 A.D.2d 597, 611 N.Y.S.2d 217).   Nor did the court err in failing to charge the jury that a stick used by the victim's girlfriend to strike defendant was a dangerous instrument as a matter of law.   Under the circumstances, the jury was entitled to determine whether the stick was a dangerous instrument within the meaning of Penal Law § 10.00(13) (see, People v. Almodovar, 62 N.Y.2d 126, 132, 476 N.Y.S.2d 95, 464 N.E.2d 463;  cf., People v. Naylor, 120 A.D.2d 940, 502 N.Y.S.2d 856, lv. denied 69 N.Y.2d 714, 512 N.Y.S.2d 1041, 504 N.E.2d 409).

 The contention that allegedly prejudicial remarks by the prosecutor during summation deprived defendant of a fair trial is without merit (see, People v. Hess, 234 A.D.2d 925, 653 N.Y.S.2d 216, lv. denied 90 N.Y.2d 1011, 666 N.Y.S.2d 106, 688 N.E.2d 1390;  see also, People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885).   Defendant has failed to preserve for our review his contention that the court erred in failing to charge the jury that he was justified in using deadly physical force to prevent or terminate the commission of a burglary (see, People v. Perez, 218 A.D.2d 754, 755, 630 N.Y.S.2d 777, lv. denied 86 N.Y.2d 874, 635 N.Y.S.2d 955, 659 N.E.2d 778), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).   The sentence is neither unduly harsh nor severe.   Although the court erred in allowing the prosecutor to impeach a witness with a prior statement (see, CPL 60.35[3];  People v. Swift, 241 A.D.2d 949, 661 N.Y.S.2d 415, lv. denied 91 N.Y.2d 881, 668 N.Y.S.2d 580, 691 N.E.2d 652, 91 N.Y.2d 1013, 676 N.Y.S.2d 141, 698 N.E.2d 970), the error is harmless (see, People v. Barber, 179 A.D.2d 1002, 1003, 579 N.Y.S.2d 795, lv. denied 79 N.Y.2d 997, 584 N.Y.S.2d 451, 594 N.E.2d 945).   We have reviewed the remaining contentions in defendant's pro se supplemental brief and conclude that they are without merit.   We specifically note that defendant misquoted the transcript in alleging that the court's charge was in error.

Judgment unanimously affirmed.

MEMORANDUM: