| People v Spurgeon |
| 2009 NY Slip Op 04932 [63 AD3d 863] |
| June 9, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shatell Spurgeon, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.),rendered September 15, 2006, convicting him of manslaughter in the first degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of manslaughter in the first degree (see Penal Law § 125.20 [1])and criminal possession of a weapon in the second degree (see Penal Law §265.03 [2]) beyond a reasonable doubt. The defendant's intent to cause serious physical injury(see Penal Law § 10.00 [10]) may be inferred from his conduct and thesurrounding circumstances (see People v Bracey, 41 NY2d 296, 303 [1977]; People v Gumbs, 58 AD3d 641[2009], lv denied 12 NY3d 784 [2009]; People v Mei Ying Wang, 33 AD3d 820, 821 [2006]). Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant contends that the People improperly introduced a prior statement intoevidence to impeach its own witness. The witness's testimony that he did not recall and did notremember whether he had seen the defendant at the crime scene did not affirmatively damage thePeople's case (see CPL 60.35 [1]; People v Saez, 69 NY2d 802, 804 [1987];People v Fitzpatrick, 40 NY2d 44, 50 [1976]; People v Andre, 185 AD2d 276,277 [1992]; People v Brazzeal, 172 AD2d 757, 759-760 [1991]). Therefore, the SupremeCourt improperly admitted the prior statement into evidence (see People v Fitzpatrick, 40NY2d 44 [1976]; People v Pellot, 186 AD2d 158 [1992]; People v Andre, 185AD2d 276, 277 [1992]; People v Brazzeal, 172 AD2d at 759). However, the error washarmless in light of the overwhelming evidence of the defendant's guilt, which includedtestimony from two eyewitnesses and the fact that there is no significant probability that the jurywould have acquitted the defendant but for the admission of the statement (see People vCrimmins, 36 NY2d 230 [1975]). The defendant also contends that a copy of this priorstatement was improperly given to the jury during deliberations without adequate limitinginstruction. However, this contention is unpreserved for appellate review (see CPL470.05 [2]).
Contrary to the defendant's contention, the Supreme Court providently exercised its [*2]discretion in directing that the sentence run consecutively to thesentence he already was serving pursuant to a prior conviction (see Penal Law §70.25 [b]; People v Garcia, 84 NY2d 336 [1994]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, do not warrant reversal. Spolzino, J.P., Covello, Angiolillo and Dickerson, JJ., concur.