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People v. Tavarez

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 2, 2010

THE PEOPLE, ETC., RESPONDENT,
v.
JOSE TAVAREZ, APPELLANT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered September 12, 2007, 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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., ANITA R. FLORIO, ARIEL E. BELEN and LEONARD B. AUSTIN, JJ.

(Ind. No. 952/05)

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant's claim that the Supreme Court erred in submitting manslaughter in the first degree (see Penal Law § 125.20[1]) as a lesser-included offense of murder in the second degree (see Penal Law § 125.25[1]) is waived inasmuch as the defendant did not object to the submission of first-degree manslaughter before the jury retired to deliberate (see CPL 300.50[1]; People v Mullins, 13 AD3d 397; People v Dunbar, 145 AD2d 501, 502). In any event, a reasonable view of the evidence supports a finding that the defendant intended to cause serious physical injury rather than death (see CPL 300.50[1]; People v Glover, 57 NY2d 61, 64; People v Pelsey, 60 AD3d 1088; People v Batts, 244 AD2d 345; People v Davis, 181 AD2d 411, 411-412).

The defendant's remaining contention is not preserved for appellate review and, in any event, is without merit.

FISHER, J.P., FLORIO, BELEN and AUSTIN, JJ., concur.

20100202

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