| People v Battles |
| 2009 NY Slip Op 06564 [65 AD3d 1161] |
| September 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Calvin Battles, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubortof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.),rendered May 2, 2006, convicting him of murder in the second degree, manslaughter in thesecond degree, and assault in the first degree (three counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofmanslaughter in the second degree, vacating the sentence imposed thereon, and dismissing thatcount of the indictment; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support theconvictions of depraved indifference murder and depraved indifference assault because evidencethat he was intoxicated on crack cocaine negated the culpable mental state of depravedindifference is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Finger, 95 NY2d 894, 895 [2000]; People v Frederick, 60 AD3d 691[2009]; People v Nikc, 52 AD3d740, 740 [2008]). In any event, this contention is without merit. Assuming, withoutdeciding, that voluntary intoxication may negate the mens rea of depraved indifference (see People v Valencia, 58 AD3d879 [2009], lv granted 12 NY3d 790 [2009]), the record in this case does notsupport an inference that the defendant's mental state was so affected by his ingestion of crackcocaine that he did not possess the requisite mental state (cf. People v Coon, 34 AD3d 869, 870 [2006]). Viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt of thosecrimes beyond a reasonable doubt.
The defendant's contention that the court erred in refusing to submit to the jury assault in thethird degree, or reckless assault, as a lesser-included offense of assault in the first degree, ordepraved indifference assault, because evidence of his intoxication on crack-cocaine negated anyevidence that he acted with depraved indifference, also is unpreserved for appellate review (see People v White, 29 AD3d457, 458 [2006]; People v Yen Koh, 225 AD2d 476 [1996]). In any event, thiscontention is without merit.
As the People correctly concede, however, the conviction of manslaughter in the seconddegree (see Penal Law § 125.15 [1]) must be vacated because that crime is aninclusory [*2]concurrent count of depraved indifference murder(see People v Mabee, 300 AD2d 509, 510 [2002]; People v Torres, 149 AD2d635, 635 [1989]). Accordingly, that count must be dismissed.
The defendant's contention that he was denied the effective assistance of counsel, raised inhis supplemental pro se brief, is without merit. His claim that he was deprived of a fair trialbecause the prosecutor failed to correct false testimony by a prosecution witness is unpreservedfor appellate review, is based in part on matters outside the record to the extent it pertains to thewitness's grand jury testimony and witness statements, and, in any event, insofar as it isreviewable in the record, is without merit. The remaining contention raised in his supplementalpro se brief is unpreserved for appellate review and, in any event, is without merit.
The defendant's remaining contentions are without merit. Fisher, J.P., Miller, Angiolillo andHall, JJ., concur.