People v. Castellanos

Dec 9, 1996
Versions:234 A.D.2d 381
651 N.Y.S.2d 876
1996 N.Y. App. Div. LEXIS 12934

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered July 1, 1991, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends on appeal that the trial court’s supplemental jury instruction deprived him of his right to be tried for only those crimes charged in the indictment. The defendant registered no objection to the supplemental instruction, and his claim is unpreserved for appellate review (see, People v Udzinski, 146 AD2d 245; see also, People v Ford, 62 NY2d 275). In any event, the defendant received fair notice of the prosecution’s theory, which was that he fired six or seven shots into a group of individuals, killing the victim, and the court’s instruction that the defendant could be found guilty if he intended to kill either the victim or another person neither prejudiced the defendant’s alibi defense nor any other viable defense. Accordingly, there is no merit to the defendant’s claim that reversal is warranted (see, People v Rivera, 84 NY2d 766, 769; People v Cassidy, 133 AD2d 374, 377). Bracken, J. P., O’Brien, Friedmann and Krausman, JJ., concur.