People v. Thomches

• Decision Date: 22 April 1991
• Citation: 569 N.Y.S.2d 158,172 A.D.2d 786
• Parties: The PEOPLE, etc., Respondent, v. Thomas THOMCHES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 158

569 N.Y.S.2d 158

172 A.D.2d 786

The PEOPLE, etc., Respondent, v. Thomas THOMCHES, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 22, 1991.

Heit & Grant, New York City (Julia Pamela Heit, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Michael O'Brien, of counsel), for respondent.

Before MANGANO, P.J., and BROWN, SULLIVAN and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, QueensCounty (Leahy, J.), rendered September 29, 1986, convicting him of murder in the second degree (two counts) and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Linakis, J.), after a hearing, of that branch of the defendant's motion which was to suppress his statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, we find that the trial court did not err in limiting cross-examination with respect to certain prosecution witnesses. It is firmly established that the degree of control to be exercised over the nature and extent of cross-examination is a matter addressed to the sound and broad discretion of the trial court (see, People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. denied 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; People v. Anderson, 168 A.D.2d 624, 563 N.Y.S.2d 463). Inasmuch as the matters which the defense counsel sought to further explore on cross-examination in this case were largely collateral, it cannot be said that the court improvidently exercised its discretion in precluding additional questioning with regard to those matters (see, People v. Boyajian, 148 A.D.2d 740, 539 N.Y.S.2d 683). In any event, even if it were assumed that the court's rulings were erroneous, the error would be harmless in view of the strong evidence of the defendant's guilt and the limited relevance of the testimony provided by the witnesses with regard to whom further cross-examination was sought (see, People v. Anderson, supra, cf., People v. Mills, 146 A.D.2d 810, 537 N.Y.S.2d 74; People v. Scoon, 130 A.D.2d 597, 515 N.Y.S.2d 306).

In view of the defendant's failure to raise an objection to that portion of the trial court's charge which submitted the counts of intentional murder and depraved mind murder in the conjunctive, rather than in the alternative (see, People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 508 N.E.2d 909), and his failure to raise the claim of inconsistent verdicts prior to the discharge of the jury, this error has not been preserved for appellate review (see, People v. Alfaro, 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280; People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271; People v. Micheline, 154 A.D.2d 624, 546 N.Y.S.2d 454; People v. Smith, 144 A.D.2d 505, 534 N.Y.S.2d 879). Moreover, we decline to address this claim in the interest of justice under the circumstances of this case (see, People v. Micheline, supra, 154 A.D.2d at 624, 546 N.Y.S.2d 454; People v. Smith, supra, 144 A.D.2d at 506, 534 N.Y.S.2d 879).

The trial court properly refused the defendant's request to charge criminally negligent homicide as a lesser included offense of murder in the second degree. Under no reasonable view of the evidence could the jury have found that the defendant committed the lesser offense but not the greater (see, People v. Seymour, 143 A.D.2d 1064, 1065, 533 N.Y.S.2d 751; People v. Cottle, 123 A.D.2d 326, 327, 506 N.Y.S.2d 218). Indeed, the statement which the defendant made to police upon his arrest demonstrated that he perceived the risk of injury to the victim in firing the gun at her, as he had fired the gun shortly before and observed that it made a hole in a wall. The defendant claimed at the trial that the gun went off accidentally when it was thrown to him by the codefendant. However, this version of the shooting, if credited, would only have supported an acquittal on the basis of an accidental shooting. Hence, neither account of the homicide proffered by the defendant reasonably could have supported a verdict finding him guilty of criminally negligent homicide, and the court properly declined to charge this offense.

We find unpersuasive the defendant's contention that the Miranda warnings given to him were insufficient because the last inquiry, e.g., "Now that I have advised you of your rights, are you willing to answer questions", did not include the phrase: "[w]ithout an attorney present". It is not necessary that the police "mouth 'a ritualistic formula' so long as the words used convey the * * * requisite information" (People v. Anderson, 146 A.D.2d 638, 640, 536 N.Y.S.2d 543, quoting from People v. Jordan, 110 A.D.2d 855, 488 N.Y.S.2d 89; see, People v. Lewis, 163 A.D.2d 328, 557 N.Y.S.2d 453). A review of the Miranda warnings read to the defendant reveal that he was sufficiently advised of his constitutional rights and that the language used satisfied the standards set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Furthermore, the record shows that the defendant understood his rights and expressly waived them.

The defendant also argues that his sentence must be vacated based on the fact that he did not receive a copy of the presentence probation report at least one court day prior to sentencing as required by CPL 390.50(2). However, the claim that sentencing could not go forward based on a violation of this statute was never...