| People v Watson |
| 2011 NY Slip Op 04287 [84 AD3d 1126] |
| May 17, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CarlWatson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'HaraGillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered March 18, 2009, 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.
Where, as here, a defendant charged with a homicide relies on a defense of justification,evidence of the victim's prior criminal acts of violence, which acts the defendant had knowledge,is admissible provided that the acts were reasonably related to the crime with which thedefendant was charged (see People v Reynoso, 73 NY2d 816, 818 [1988]; People vMiller, 39 NY2d 543, 551 [1976]; People v Hudyih, 60 AD3d 1084 [2009];People v Washington, 44 AD3d 973 [2007]; People v Fore, 33 AD3d 932,932-933 [2006]; People v Santiago, 211 AD2d 734 [1995]). The Supreme Courtprovidently exercised its discretion in denying admission of evidence of the decedent's priorspecific criminal acts of violence, because the defendant lacked the requisite knowledge of thesecriminal acts (see People v Reynoso, 73 NY2d at 819; People v Washington, 44AD3d at 973; People v Santiago, 211 AD2d 734 [1995]).
The defendant contends that the Supreme Court should have conducted in camera inquiriesof each individual juror to determine his or her ability to continue to serve impartially after anoutburst in the courtroom by a family member of the homicide victim to the effect that thedefendant was a "murderer" who would "get what was coming to him" (see CPL 270.35[1]; People v Buford, 69 NY2d 290, 299 [1987]). However, this contention isunpreserved for appellate review, since, as the defendant concedes, he never requested suchinquiries but instead moved for a mistrial (see CPL 470.05 [2]; People v Hicks, 6NY3d 737, 739 [2005]; People v Smith, 49 AD3d 904, 905 [2008]; People vMorales, 36 AD3d 631, 632 [2007]; People v Warren, 27 AD3d 496, 498 [2006];People v Middleton, 18 AD3d 670, 671 [2005]). In any event, the Supreme Courtascertained that there was no indication that any of the jurors were at all influenced or affected bythe outburst. Defense counsel's representation was not rendered constitutionally ineffective by hisfailure to specifically request an enhanced level of inquiry by the Supreme Court into each juror'sindividual ability to continue to serve impartially after the outburst (see People vColville, 79 AD3d 189, 204 [2010]).[*2]
Contrary to the defendant's contentions, the SupremeCourt did not err in directing that the term of imprisonment imposed for criminal possession of aweapon in the second degree was to run consecutively to the term of imprisonment imposed formanslaughter in the first degree. The record supports the Supreme Court's conclusion that theweapon possession offense arose from an act separate from the acts underlying the manslaughteroffense (see Penal Law § 70.25; People v Madrid, 52 AD3d 530, 532[2008]; People v Reyes, 301 AD2d 540 [2003]; People v Mack, 242 AD2d 543[1997]; People v Lugo, 236 AD2d 560 [1997]; People v Simpson, 209 AD2d 281[1994]; cf. People v Joseph, 269 AD2d 407 [2000]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Angiolillo, J.P., Dickerson, Belen and Sgroi, JJ., concur.