Opinion
May 14, 1992
Appeal from the Supreme Court, New York County (Richard B. Lowe, III, J.).
Defendant was arrested in connection with the stabbing death of one man and the stabbing injury of another man near Washington Square Park. The defendant was identified as the assailant in separate police lineups within days of the incident by the surviving victim and an eyewitness, both of whom had indicated to the police that the attack came about as a result of a disagreement with respect to a narcotic sale.
A review of the record demonstrates that defendant was provided with meaningful representation by his trial counsel (see, People v. Baldi, 54 N.Y.2d 137, 147). Even assuming arguendo that counsel should have moved to suppress the knife, in light of the eyewitness testimony there is no reason to believe that the outcome of the trial would have been different if such motion had been granted (see, People v. Almestica, 42 N.Y.2d 222, 226). There is no merit to defendant's claim that one of the jurors should have been discharged. Although not preserved for review, the record demonstrates that the juror referred to had merely suffered a temporary fainting spell as a result of the heat in the courtroom and had recovered. Accordingly, there was no reason to disqualify the juror under CPL 270.35.
The testimony indicated that defendant, provoked only by a disagreement over terms of the drug sale, went into a rage, threatened the victims and proceeded to stab them. Inasmuch as there was no indication that either victim was about to use deadly force against defendant, a justification charge was not appropriate (see, People v. Fason, 135 A.D.2d 983, lv denied 72 N.Y.2d 858). We find no error in the admission of the lineup identifications of defendant. The People met their burden of showing that the pretrial identification procedures were fair (see, People v. Stephens, 143 A.D.2d 692, 695). Nor do we find the sentence imposed to be excessive. Defendant stabbed one man to death and wounded another without any provocation other than that the parties were in disagreement over the quality and price of drugs.
Concur — Ellerin, J.P., Kupferman, Asch and Kassal, JJ.