People v Troy Fluellen

People v Fluellen 2003 NY Slip Op 19661 [2 AD3d 286] December 18, 2003 Appellate Division, First Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Troy Fluellen, Appellant.

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Judgment, Supreme Court, Bronx County (Margaret Clancy, J.), rendered May 21, 2001, convicting defendant, after a jury trial, of burglary in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, and sentencing him to concurrent terms of 11 years, 5 years, and 21/3 to 7 years, respectively, unanimously affirmed.

The verdict convicting defendant of first-degree reckless endangerment was based on legally sufficient evidence and was not against the weight of the evidence. The evidence permitted the jury to reasonably conclude that, during a struggle with the victim, defendant squeezed the trigger of his weapon and fired a shot, and that the weapon did not merely discharge as the result of the victim's actions. Defendant's conduct evinced depraved indifference to the life of the victim and created a grave risk of death (see People v Sanchez, 98 NY2d 373 [2002]).

The court properly exercised its discretion in denying defendant's mistrial motion based on the prosecutor's cross-examination of a defense witness concerning an unrelated murder. Defendant did not request the prosecutor to establish a good faith basis for this line of questioning (see People v Kuss, 32 NY2d 436, 443-444 [1973], cert denied 415 US 913 [1974]). In any event, the court cut off the inquiry before it reached the point of causing any undue prejudice. Defendant's remaining challenges to the cross-examination of this witness are unpreserved (see People v Harris, 98 NY2d 452, 492 [2002]; People v Gonzalez, 55 NY2d 720 [1981]), and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged inquiries were permissible.

We perceive no basis for reducing the sentence. Concur—Nardelli, J.P., Tom, Andrias, Rosenberger and Friedman, JJ.