People v. Mason

• Decision Date: 23 May 1996
• Citation: 643 N.Y.S.2d 53,227 A.D.2d 289
• Parties: The PEOPLE of the State of New York, Respondent, v. John MASON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 53

643 N.Y.S.2d 53

227 A.D.2d 289

The PEOPLE of the State of New York, Respondent, v. John MASON, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 23, 1996.

Patsy Bonanno, for Respondent.

Andrea G. Hirsch, for Defendant-Appellant.

Before MURPHY, P.J., and WALLACH, ROSS, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Dominick Massaro, J.), rendered July 9, 1993, convicting defendant, after a jury trial, of manslaughter in the first degree, criminally negligent homicide and criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 8 to 16 years, 2 to 4 years and 3 1/2 to 7 years, respectively, unanimously affirmed.

Defendant's claim that the verdict is repugnant is not preserved since no such objection was taken to the verdict before discharge of the jury (People v. Hankinson, 119 A.D.2d 506, 507, 501 N.Y.S.2d 36, lv. denied 68 N.Y.2d 668, 505 N.Y.S.2d 1033, 496 N.E.2d 691, citing, inter alia, People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271). In any event, the verdict was not repugnant since the jury found that defendant intended to cause serious physical injury to the victim by hitting him in the head with a gun and failed to perceive the risk that the gun would fire on impact. The acquittal on the count of criminal possession of a weapon in the second degree was consistent with the instruction, given at defendant's request, which defendant was not entitled to, that intent to use the gun unlawfully against another required an intent to fire the weapon. Defendant's claim that the court erred in failing to submit the homicide counts in the alternative was waived, having taken the benefit of the favorable charge (see, People v. Shaffer, 66 N.Y.2d 663, 665, 495 N.Y.S.2d 965, 486 N.E.2d 823).

Defendant's claim that he was excluded from sidebar conferences during questioning of potential jurors in open court is unsupported by the record (see, People v. Cuevas, 203 A.D.2d 88, 610 N.Y.S.2d 41, lv. denied 83 N.Y.2d 909, 614 N.Y.S.2d 391, 637 N.E.2d 282). It is defendant's obligation to generate a proper record for review (see, People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786; compare, People v. Monclavo, 87 N.Y.2d 1029, 643 N.Y.S.2d 470, 666 N.E.2d 175). Moreover, defendant could not have made any meaningful contribution by his presence at the interviews of these prospective...