        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

947
KA 09-01395
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONOVAN HUMPHREY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     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.

     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 [1]) and assault in the second degree (§ 120.05 [2]).
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 AD3d 1592, 1594, lv denied 17
NY3d 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 AD2d
833, 833, lv denied 98 NY2d 697; see generally People v Hillard, 79
AD3d 1757, 1758, lv denied 17 NY3d 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 AD2d 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 AD3d 1305,
1305-1306; People v Clabeaux, 277 AD2d 988, 988, lv denied 96 NY2d
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 [6] [a]).
Defendant likewise failed to preserve for our review his challenge to
                                 -2-                          947
                                                        KA 09-01395

the jury charge with respect to his justification defense (see People
v Johnson, 103 AD3d 1226, 1226, lv denied 21 NY3d 944; People v Poles,
70 AD3d 1402, 1403, lv denied 15 NY3d 808; People v McWilliams, 48
AD3d 1266, 1267, lv denied 10 NY3d 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 AD3d at 1267, quoting People v
Coleman, 70 NY2d 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 AD3d at 1226).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
