645 N.Y.S.2d 693 | N.Y. App. Div. | 1996
—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment following a jury trial convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree. Defendant contends that three instances of prosecutorial misconduct deprived him of a fair trial; that the brief absence of the Trial Judge from the courtroom during voir dire constitutes reversible error; and that the court erred in refusing to charge criminally negligent homicide as a lesser included offense of murder in the second degree.
The comments of the prosecutor during voir dire did not deprive defendant of a fair trial (see, People v Morrison, 214 AD2d 366, 367, lv denied 86 NY2d 799; see also, People v Plant, 138 AD2d 968, lv denied 71 NY2d 1031). Defendant failed to preserve for our review his contention concerning the second alleged instance of prosecutorial misconduct, i.e., the demonstration by the prosecutor during cross-examination of defendant (see, CPL 470.05 [2]). In any event, that contention is wdthout merit. The decision of defendant to testify made him subject to cross-examination by the prosecutor. Based upon our review of the record, we conclude that the court did not abuse its discretion in allowing the demonstration (see, People v Barnes, 80 NY2d 867; see also, People v Acevedo, 40 NY2d 701, 704). With respect to the third alleged instance of prosecutorial misconduct, we conclude that the court did not err in denying defendant’s motion for a mistrial following the prosecutor’s improper disclosure of the facts underlying defendant’s conviction of possession of drugs in Virginia. There is overwhelming evidence of defendant’s guilt, and there is no significant probability that the jury would have acquitted defendant but for the prosecutor’s misconduct (see, People v Crimmins, 36 NY2d 230, 242; see also, People v Johnson, 219 AD2d 809, lv denied 87 NY2d 903).
We reject defendant’s contention that the Trial Judge’s brief absence from the courtroom during voir dire requires reversal; the Trial Judge went to his chambers to pick up a presentence report. We note that preservation of this issue is not required, because the failure of the Trial Judge to supervise the trial implicates "the organization of the court or the mode of proceedings prescribed by law” (People v Patterson, 39 NY2d
The court did not err in refusing to grant defendant’s request to charge criminally negligent homicide as a lesser included offense of murder in the second degree. A lesser included offense is properly charged where it is impossible to commit the greater offense without by the same conduct committing the lesser included offense, and a reasonable view of the evidence supports a finding that defendant committed the lesser offense but not the greater (CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63). While criminally negligent homicide can be a lesser included offense of murder in the second degree (People v Brooks, 163 AD2d 832, lv denied 76 NY2d 891), in this case there is no reasonable view of the evidence, viewed in the light most favorable to defendant, that defendant failed to perceive the risk of causing death when he fired two shots at the victim. (Appeal from Judgment of Onondaga County Court, Cunningham, J.—Manslaughter, 1st Degree.) Present—Pine, J. P., Law-ton, Wesley, Balio and Davis, JJ.
