PEOPLE v. MOREL

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

The PEOPLE, etc., Respondent, v. Domingo MOREL, Appellant.

Decided: September 23, 2002

ANITA R. FLORIO, J.P., SONDRA MILLER, STEPHEN G. CRANE and WILLIAM F. MASTRO, JJ. Andrew C. Fine, New York, N.Y. (Allen Fallek of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Roni C. Piplani of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered September 15, 2000, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On the evening of October 9, 1997, the defendant and the victim argued over a parking space.   After a physical altercation, the defendant retrieved a knife from the car he was driving and stabbed the victim in the chest, causing his death.

 Since the defendant failed to object, raised only general objections, and did not ask for curative instructions or move for a mistrial based on the sustained objections, his claims of alleged improprieties in the prosecutor's cross-examination of him and in summation are unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370;  People v. Robinson, 281 A.D.2d 564, 565, 721 N.Y.S.2d 830;  People v. Caicedo, 173 A.D.2d 630, 570 N.Y.S.2d 215;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).

 Contrary to the defendant's contentions, the Supreme Court properly precluded statements he made to a police detective, which were hearsay (see People v. Reynoso, 73 N.Y.2d 816, 819, 537 N.Y.S.2d 113, 534 N.E.2d 30;  People v. Starostin, 265 A.D.2d 267, 698 N.Y.S.2d 6;  cf.  People v. Boyd, 256 A.D.2d 350, 683 N.Y.S.2d 271).

 The Supreme Court providently exercised its discretion in admitting into evidence a photograph depicting the fatal wound.   It was probative on the issue of the defendant's intent, and corroborated the medical examiner's testimony regarding the fatal wound (see People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110;  People v. Ponce, 213 A.D.2d 725, 624 N.Y.S.2d 283;  People v. Kaiser, 204 A.D.2d 572, 612 N.Y.S.2d 67;  People v. Washington, 182 A.D.2d 791, 582 N.Y.S.2d 740).   Moreover, the Supreme Court instructed the jury to view the photograph in the context of the testimony of the medical examiner who identified the fatal wound in the photograph for the jury.   Accordingly, the probative value of the photograph was not outweighed by its prejudicial effect (see People v. D'Lucca, 243 A.D.2d 487, 488, 674 N.Y.S.2d 47;  People v. DeBerry, 234 A.D.2d 470, 651 N.Y.S.2d 559).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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