People v. DeFairia — 186 A.D.2d 366

Majority

p. 366

The People of the State of New York, Respondent, v Daniel DeFairia, Appellant.

— Judgment, Supreme Court, Bronx County (Stephen L. Barrett, J.), rendered November 15, 1988, convicting defendant, after a jury trial, of manslaughter in the first degree, assault in the third degree, and criminal possession of a weapon in the fourth degree, and sentencing him to a term of IVi to 22 Vi years to run concurrently with two 1 year terms, unanimously affirmed.

The evidence regarding defendant’s tirade in the hallway approximately thirty minutes before he punched one of the victims in the face and forty-five minutes before he stabbed the other victim to death was properly admitted since the incident was relevant to the issues in the case (see, People v Lewis, 69 NY2d 321 , 325), including whether defendant acted justifiably when he stabbed the victim. Therefore, contrary to defendant’s unpreserved appellate argument, the prosecutor could properly argue in summation that defendant’s swearing

p. 367

in the hallway and his assault of the decedent’s wife were consistent with the inference that defendant was not acting reasonably and was the initial aggressor when he stabbed the decedent. Furthermore, contrary to defendant’s argument, the prosecutor did not impermissibly mischaracterize the defense by arguing in summation that defense counsel wanted the jury to believe that defendant was a victim and that the decedent was not. Concur — Sullivan, J. P., Carro, Asch and Rubin, JJ.

Cases cited

People v. Lewis 69 NY2d 321 N.Y. 1987-03-26 at 325 p. 366