People v. Nelson

177 A.D.2d 603, 576 N.Y.S.2d 310, 1991 N.Y. App. Div. LEXIS 14543

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lagaña, J.), rendered March 10, 1989, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

At no time during trial did the defendant object to testimony offered by the prosecution concerning altercations between the defendant’s friends and the victim which had occurred prior to the fatal shooting which resulted in his arrest and indictment. Therefore, his contentions that the evidence was improperly admitted by the trial court are unpreserved for appellate review (see, CPL 470.05 [2]; People v Oliver, 63 NY2d 973). In any event, we find that the disputed testimony was relevant in that it provided necessary background information and was probative in informing the jury of the sequence of events leading up to the fatal shooting (see, People v Ortiz, 134 AD2d 624).

Similarly, at trial the defendant did not object to the introduction of statements made by him to the police after his arrest, nor contest their voluntariness (see, People v Cefaro, 23 NY2d 283, 288). Further, he neither requested a charge on those issues nor excepted to the charge as given. His contention that the court erred in failing to properly instruct the jury, therefore, also was not preserved for appellate review (see, People v Berkman, 124 AD2d 590, 591-592).

Finally, there is no basis on which to remit the case for resentencing, as there were no mitigating circumstances which would warrant sentencing the defendant as a youthful offender (see, CPL 720.10). Bracken, J. P., Harwood, Fiber and O’Brien, JJ., concur.