Opinion
2012-12-12
The PEOPLE, etc., respondent, v. Joel FOWLER, appellant.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 24, 2009, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress certain statements he made to law enforcement officials.
ORDERED that the judgment is affirmed.
The defendant contends that certain statements he made to law enforcement officials should have been suppressed. However, the specific arguments asserted by the defendant on appeal to support this contention are unpreserved for appellate review ( seeCPL 470.05[2]; People v. Vasquez, 66 N.Y.2d 968, 970, 498 N.Y.S.2d 788, 489 N.E.2d 757,cert. denied475 U.S. 1109, 106 S.Ct. 1517, 89 L.Ed.2d 916;People v. Maxis, 50 A.D.3d 922, 923, 855 N.Y.S.2d 251;People v. Rogers, 34 A.D.3d 504, 505, 824 N.Y.S.2d 121). Moreover, the defendant may not rely upon trial testimony to challenge a suppression ruling where, as here, he failed to request a reopening of the suppression hearing ( see *920People v. Abrew, 95 N.Y.2d 806, 808, 710 N.Y.S.2d 833, 732 N.E.2d 940;People v. Cortez, 81 A.D.3d 742, 742, 916 N.Y.S.2d 176;People v. Maxis, 50 A.D.3d at 923, 855 N.Y.S.2d 251;People v. McFarlane, 18 A.D.3d 577, 578, 794 N.Y.S.2d 660). In any event, the defendant's contention is without merit ( see People v. Petronio, 34 A.D.3d 602, 604, 825 N.Y.S.2d 99;People v. Miller, 268 A.D.2d 600, 600–601, 702 N.Y.S.2d 851). Accordingly, the Supreme Court properly declined to suppress the statements in question.
“A person is justified in using deadly force against another if he or she reasonably believes such to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force by such other person. A court need not charge the defense of justification if, considering the record in the light most favorable to the defendant, no reasonable view of the evidence supports it” ( People v. Ojar, 38 A.D.3d 684, 684–685, 832 N.Y.S.2d 250 [citations and internal quotation marks omitted] ). Contrary to the defendant's contention, the Supreme Court properly denied his request to charge the jury regarding the justification defense, as no reasonable view of the evidence supported such a charge ( see People v. Long, 259 A.D.2d 634, 687 N.Y.S.2d 391).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 86, 455 N.Y.S.2d 675).