| People v Harris |
| 2010 NY Slip Op 05166 [74 AD3d 1844] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Darius Harris,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Patrick B. Shanahan of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered March11, 2009. The judgment convicted defendant, upon a jury verdict, of manslaughter in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends that CountyCourt erred in refusing to suppress a witness's identification of defendant from a photo array anddefendant's statements to the police. We reject that contention. The photo array was not undulysuggestive inasmuch as it did not "create a substantial likelihood that the defendant would besingled out for identification" (People v Chipp, 75 NY2d 327, 336 [1990], certdenied 498 US 833 [1990]). We further conclude that defendant was not in custody at thetime he made the statements to the police (see People v Sanderson, 68 AD3d 1716 [2009]; see generallyPeople v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Defensecounsel advised the court that he was not requesting a jury charge with respect to thevoluntariness of defendant's statements to the police, and defendant therefore waived his furthercontention that he was deprived of due process by the court's failure to give such a charge (see generally People v Carter, 38AD3d 1291 [2007]).
The court properly determined that the inmate to whom defendant spoke concerning thecrime "was not acting as an agent of the government because he was working independently ofthe prosecution and the information was not sought by the prosecutor but, rather, was passivelyreceived by the prosecutor" (People vDavis, 38 AD3d 1170, 1171 [2007], lv denied 9 NY3d 842 [2007], certdenied 552 US 1065 [2007]). Defendant's contention that the evidence is not legallysufficient to support the conviction is not preserved for our review (see People v Hawkins, 11 NY3d484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). Defendant also failed topreserve for our review his contention that the court erred in failing to afford him youthfuloffender status inasmuch as he never requested youthful offender status (see People v Ficchi, 64 AD3d1195 [2009], lv denied 13 NY3d 859 [2009]; see generally People vMcGowen, 42 NY2d 905, 906 [1977], rearg denied 42 NY2d 1015 [1977]).[*2]
We have reviewed defendant's remaining contentions andconclude that they are without merit. Present—Scudder, P.J., Martoche, Sconiers, Greenand Gorski, JJ.