| People v Humphrey |
| 2013 NY Slip Op 06181 [109 AD3d 1173] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vDonovan Humphrey, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered August 27, 2008. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the second degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of manslaughter in the second degree (Penal Law § 125.15 [1]) and assaultin the second degree (§ 120.05 [2]). Defendant failed to preserve for our reviewhis contention that Supreme Court erred in permitting the People to introduce evidenceof a prior uncharged crime inasmuch as he never objected to the evidence on that ground(see People v Nappi, 83AD3d 1592, 1594 [2011], lv denied 17 NY3d 820 [2011]). In any event, thatcontention is without merit. Photographs of defendant holding what appeared to be a rifle"[are] not evidence of an uncharged crime absent further proof that his possession ofth[at] item[ ] was illegal" (People v Hucks, 292 AD2d 833, 833 [2002], lvdenied 98 NY2d 697 [2002]; see generally People v Hillard, 79 AD3d 1757, 1758[2010], lv denied 17 NY3d 796 [2011]). "[M]ere speculation that a jury maydiscern something sinister about a defendant's behavior does not render such behavior anuncharged crime" (Hucks, 292 AD2d at 833).
Defendant failed to preserve for our review his contention that the court erred inallowing the People to present rebuttal testimony on an allegedly collateral matterinasmuch as he failed to object to such testimony at trial (see People v Comerford, 70AD3d 1305, 1305-1306 [2010]; People v Clabeaux, 277 AD2d 988, 988[2000], lv denied 96 NY2d 781 [2001]), and we decline to exercise our power toreview it as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Defendant likewise failed to preserve for our review his challenge to the jury chargewith respect to his justification defense (see People v Johnson, 103 AD3d 1226, 1226 [2013], lvdenied 21 NY3d 944 [2013]; People v Poles, 70 AD3d 1402, 1403 [2010], lvdenied 15 NY3d 808 [2010]; People v McWilliams, 48 AD3d 1266, 1267 [2008], lvdenied 10 NY3d 961 [2008]). In any event, we conclude that the court's justificationcharge does not require reversal. "[D]espite the absence of the word 'deadly' from thatpart of the court's charge defining the term initial aggressor, the court's justificationcharge adequately conveyed to the jury that defendant could be justified in the use ofdeadly physical force to defend himself against deadly physical force initiated by[others]. Thus, the justification charge, [*2]viewed in itsentirety, was 'a correct statement of the law' " (McWilliams, 48 AD3d at 1267,quoting People v Coleman, 70 NY2d 817, 819 [1987]). Finally, "[b]ecause thecourt did not erroneously instruct the jury regarding justification, defense counsel wasnot ineffective for failing to object to that charge" (Johnson, 103 AD3d at 1226).Present—Smith, J.P., Peradotto, Carni and Lindley, JJ.