People v. O'Dell

111 A.D.2d 937, 491 N.Y.S.2d 46, 1985 N.Y. App. Div. LEXIS 50211

Opinion

Appeal by defendant from a judgment of the County Court, Dutchess County (Aldrich, J.), rendered April 23,1982, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Defendant’s guilt was proven beyond a reasonable doubt (see, People v Contes, 60 NY2d 620, 621). There was ample evidence from which the jury could infer that defendant intended to kill the victim based upon his conduct on the night in question (see, People v Barnes, 50 NY2d 375; People v Mackey, 49 NY2d 274).

Since no objection was taken by defense counsel to the court’s charge on intent, any error in that charge has not been preserved for appellate review as a matter of law (People v Glinsman, 107 AD2d 710; People v Mandrachio, 79 AD2d 278, affd 55 NY2d 906, cert denied 457 US 1122).

The court properly exercised its discretion in allowing the prosecutor to introduce, on rebuttal, a sworn statement made by one of the People’s witnesses in order to negate her testimony on cross-examination which had raised a possible justification defense not previously mentioned during direct examination. Even if such proof was not actually of a rebuttal nature, the trial court could have nevertheless permitted its introduction in the interest of justice (CPL 260.30 [7]; People v Harris, 57 NY2d 335, 345, cert denied 460 US 1047; People v Sterling, 95 AD2d 927, 928). Mangano, J. P., Bracken, Rubin and Kunzeman, JJ., concur.