September 27, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DONOVAN HUMPHREY, DEFENDANT-APPELLANT.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered August 27, 2008. The judgment convicted defendant, upon a jury verdict, of manslaughter in the second degree and assault in the second degree.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the second degree (Penal Law § 125.15 ) and assault in the second degree (§ 120.05 ). Defendant failed to preserve for our review his contention that Supreme Court erred in permitting the People to introduce evidence of a prior uncharged crime inasmuch as he never objected to the evidence on that ground (see People v Nappi, 83 A.D.3d 1592, 1594, lv denied 17 N.Y.3d 820). In any event, that contention is without merit. Photographs of defendant holding what appeared to be a rifle "[are] not evidence of an uncharged crime absent further proof that his possession of th[at] item was illegal" (People v Hucks, 292 A.D.2d 833, 833, lv denied 98 N.Y.2d 697; see generally People v Hillard, 79 A.D.3d 1757, 1758, lv denied 17 N.Y.3d 796). "[M]ere speculation that a jury may discern something sinister about a defendant's behavior does not render such behavior an uncharged crime" (Hucks, 292 A.D.2d at 833).
Defendant failed to preserve for our review his contention that the court erred in allowing the People to present rebuttal testimony on an allegedly collateral matter inasmuch as he failed to object to such testimony at trial (see People v Comerford, 70 A.D.3d 1305, 1305-1306; People v Clabeaux, 277 A.D.2d 988, 988, lv denied 96 N.Y.2d 781), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15  [a]). Defendant likewise failed to preserve for our review his challenge to the jury charge with respect to his justification defense (see People v Johnson, 103 A.D.3d 1226, 1226, lv denied 21 N.Y.3d 944; People v Poles, 70 A.D.3d 1402, 1403, lv denied 15 N.Y.3d 808; People v McWilliams, 48 A.D.3d 1266, 1267, lv denied 10 N.Y.3d 961). In any event, we conclude that the court's justification charge does not require reversal. "[D]espite the absence of the word deadly' from that part of the court's charge defining the term initial aggressor, the court's justification charge adequately conveyed to the jury that defendant could be justified in the use of deadly physical force to defend himself against deadly physical force initiated by [others]. Thus, the justification charge, viewed in its entirety, was a correct statement of the law' " (McWilliams, 48 A.D.3d at 1267, quoting People v Coleman, 70 N.Y.2d 817, 819). Finally, "[b]ecause the court did not erroneously instruct the jury regarding justification, defense counsel was not ineffective for failing to object to that charge" (Johnson, 103 A.D.3d at 1226).