Opinion
1858-1859
October 15, 2002.
Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered November 20, 1997, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him as a second violent felony offender, to a term of 12 to 25 years, and order, same court (Bruce Allen, J.), entered on or about October 24, 2001, which denied defendant's motion to vacate the judgment pursuant to CPL 440.10, unanimously affirmed.
CHRISTOPHER P. MARINELLI, for respondent.
SUSAN EPSTEIN PRO SE, for defendant-appellant.
Before: Nardelli, J.P., Mazzarelli, Sullivan, Ellerin, Rubin, JJ.
Defendant's motion to suppress his post-arrest statement was properly denied. The People met their burden of proving beyond a reasonable doubt that under the totality of the circumstances, defendant's statement was knowingly, intelligently and voluntarily made. Defendant's mental condition did not cast doubt on the voluntariness of his statement (see People v. Williams, 62 N.Y.2d 285; People v. Williams, 279 A.D.2d 276,affd 97 N.Y.2d 735). The hearing evidence established that defendant was completely coherent at the time of his statement, despite a past history of mental illness.
The court, which submitted manslaughter in the first degree as a lesser included offense of intentional murder, properly declined to further submit manslaughter in the second degree. Viewing the evidence in the light most favorable to defendant, there was no reasonable view of the evidence that would support a conviction of second-degree manslaughter but not first-degree manslaughter. While defendant's statement to the police, at best, negated an intent to cause death, it clearly admitted an intent to cause serious physical injury to the victim. Thus, by admitting intentional conduct, defendant negated any theory of recklessness (People v. Gordon, 223 A.D.2d 372, lv denied 88 N.Y.2d 936). Furthermore, the number, depth, and placement of the victim's stab wounds were completely inconsistent with reckless rather than intentional conduct.
Defendant's CPL 440.10 motion alleging ineffective assistance of counsel was properly denied without an evidentiary hearing. As determined by the motion court, defendant's unsupported allegations that defense counsel did not properly investigate his alibi claims were insufficient to raise an issue of fact, since they were thoroughly refuted by trial counsel's detailed affirmation (see People v. Satterfield, 66 N.Y.2d 796, 799-800).
The trial court properly declined to deliver a missing witness charge with respect to the second officer who was present when defendant gave his post-arrest statement since the now retired officer could not provide any material, non-cumulative testimony (see People v. Gonzalez, 68 N.Y.2d 424). The balance of defendant's pro se claims are unpreserved for appellate review and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.