People v. Maldonado

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered July 2, 1991, convicting defendant, after a jury trial, of manslaughter in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms

By requesting submission of manslaughter in the second degree as a lesser included offense of murder in the second degree, defendant necessarily conceded, if indeed he did not affirmatively argue, that such a charge was supported by a reasonable view of the evidence, thereby waiving his present argument that while the evidence might have supported a theory that he had intentionally shot the deceased, it was legally insufficient to show that he had acted recklessly (People v Ford, 66 NY2d 428 , 440). The court did not err in submitting the missing witness charge, and it makes no difference that the witness might have been available to the prosecution (see, People v Ramirez, 73 AD2d 567 ). The affirmance of defendant’s prior violent felony conviction, by a Connecticut appellate court (State v Maldonado, 193 Conn 350 , 478 A2d 581 ) collaterally estops his present claim that the Connecticut trial court had violated his Federal constitutional right of confrontation (see, e.g., People v Abbott, 113 Misc 2d 766 , 777-778, affd 178 AD2d 281 , lv denied 79 NY2d 918 ; People v Di Giacomo, 96 AD2d 1127 ).

We have considered defendant’s remaining contentions and find them to be unpreserved or without merit. Concur—Murphy, P. J., Sullivan, Kupferman and Nardelli, JJ.