| People v Green |
| 2009 NY Slip Op 02045 [60 AD3d 1320] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DarnellGreen, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Paul J. Williams, III, of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered February 7, 2007. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]). We reject the contention ofdefendant that Supreme Court erred in denying his first Batson challenge with respect toa black prospective juror. Defendant failed to present "facts and other relevant circumstancessufficient to raise an inference that the prosecution used its peremptory challenge[ ] to exclude"the potential juror because of her race (People v Childress, 81 NY2d 263, 266 [1993]; see People v Jones, 11 NY3d 822,823 [2008]; see generally Batson v Kentucky, 476 US 79, 93-94 [1986]). Contrary to thefurther contention of defendant, the court's determination that he did not establish good cause forhis failure to serve and file a notice of intent to introduce psychiatric evidence in a timelymanner was not an abuse of discretion, inasmuch as defendant failed to provide even informalnotice of such intent until the trial had commenced (see CPL 250.10 [2]; People vBerk, 88 NY2d 257, 265-266 [1996], cert denied 519 US 859 [1996]; People v Heath, 49 AD3d 970,972 [2008], lv denied 10 NY3d 959 [2008]).
Defendant waived his challenge to the legal sufficiency of the evidence by requesting thatthe court charge manslaughter in the first degree as a lesser included offense of murder in thesecond degree (Penal Law § 125.25 [1]; see CPL 300.50 [1]; People vRichardson, 88 NY2d 1049, 1051 [1996]; People v McDuffie, 46 AD3d 1385, 1386 [2007], lv denied10 NY3d 867 [2008]). Viewing the evidence in light of the elements of the crime as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Although none of the witnesses testified that he or she observed defendant with a knife, thetestimony of several witnesses established that defendant was the initial unprovoked aggressorand that only defendant and the victim were involved in the altercation during which the victimwas stabbed. We thus perceive no reason to disturb the jury's credibility determinations (seePeople v Borthwick, 51 AD3d [*2]1211, 1214 [2008], lvdenied 11 NY3d 734 [2008]).
We further conclude that the court properly refused to suppress defendant's statements to thepolice. The intelligence of a defendant is only one factor to consider in determining whether hisor her waiver of Miranda rights was voluntary and, here, the record supports the court'sdetermination that defendant understood the meaning of the Miranda warnings prior towaiving his rights (see People v Williams, 62 NY2d 285, 288-290 [1984]). We reject thecontention of defendant that new Miranda warnings were required before he madestatements to the transporting officer. Those statements were made within a reasonable time afterthe initial valid waiver by defendant of his Miranda rights, during which time defendantremained in continuous custody (seePeople v Cox, 21 AD3d 1361, 1363 [2005], lv denied 6 NY3d 753 [2005]; People v Johnson, 20 AD3d 939[2005], lv denied 5 NY3d 853 [2005]).
Contrary to the contention of defendant, he was not denied a fair trial based on the court'sexpanded jury charge with respect to intent. The language used by the court was substantiallysimilar to language recommended by the Committee on Criminal Jury Instructions, and "thecourt's charge, read as a whole, made clear that it was the jury's role to determine the defendant'sintent, and that the People bore the burden of proving, beyond a reasonable doubt, that thedefendant acted [intentionally]" (Peoplev Torres, 46 AD3d 925, 925-926 [2007], lv denied 10 NY3d 817 [2008]). Thefurther contention of defendant that he was deprived of a fair trial by prosecutorial misconducton summation is preserved for our review only with respect to certain instances of allegedmisconduct (see CPL 470.05 [2]). In any event, we conclude that the prosecutor'scomments on summation were "either a fair response to defense counsel's summation or faircomment on the evidence" (People vAnderson, 52 AD3d 1320, 1321 [2008], lv denied 11 NY3d 733 [2008]; seePeople v Farrell, 228 AD2d 693 [1996], lv denied 88 NY2d 984 [1996]). We havereviewed defendant's remaining contentions and conclude that they are without merit.Present—Scudder, P.J., Hurlbutt, Peradotto and Gorski, JJ.