People v. Maldonado

196 A.D.2d 778, 602 N.Y.S.2d 118, 1993 N.Y. App. Div. LEXIS 8839

Opinion

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered July 2, 1991, convicting defendant, after a jury trial, of manslaughter in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 7 Vi to 15 years, 7 Vi to 15 years and 3 Vi to 7 years, respectively, unanimously affirmed.

By requesting submission of manslaughter in the second degree as a lesser included offense of murder in the second degree, defendant necessarily conceded, if indeed he did not affirmatively argue, that such a charge was supported by a reasonable view of the evidence, thereby waiving his present argument that while the evidence might have supported a theory that he had intentionally shot the deceased, it was legally insufficient to show that he had acted recklessly (People v Ford, 66 NY2d 428, 440). The court did not err in submitting the missing witness charge, and it makes no difference that the witness might have been available to the prosecution (see, People v Ramirez, 73 AD2d 567). The affirmance of defendant’s prior violent felony conviction, by a Connecticut appellate court (State v Maldonado, 193 Conn 350, 478 A2d 581) collaterally estops his present claim that the Connecticut trial court had violated his Federal constitutional right of confrontation (see, e.g., People v Abbott, 113 Misc 2d 766, 777-778, affd 178 AD2d 281, lv denied 79 NY2d 918; People v Di Giacomo, 96 AD2d 1127).

We have considered defendant’s remaining contentions and find them to be unpreserved or without merit. Concur—Murphy, P. J., Sullivan, Kupferman and Nardelli, JJ.