People v. Inocencio

Appeal by the defendant from a judgment of the County Court, Westchester County (Silverman, J.), rendered May 26, 1989, convicting him of manslaughter in the first degree, after a nonjury trial, and imposing sentence. Ordered that the judgment is affirmed. The defendant contends that reversal is required because the allegations of the indictment and bill of particulars supplied by the People varied materially from the evidence adduced by the prosecution at trial. However, inasmuch as the defendant voiced no objection or exception to this alleged error in the trial court, he has failed to preserve the issue for [733] appellate review (see, People v Udzinski, 146 AD2d 245; People v Prato, 143 AD2d 205). Moreover, the record demonstrates that the defendant suffered no prejudice as a result of the alleged error, inasmuch as he made no claim of surprise when the trial evidence was presented and sought no adjournment to better prepare a defense thereto (cf., People v Roberts, 72 NY2d 489); hence, we decline to reach the issue in the exercise of our interest of justice jurisdiction. Viewing the evidence adduced at trial, which included eyewitness testimony, circumstantial evidence, and the defendant’s own inculpatory statements, in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). We have considered the defendant’s remaining contention and find it to be without merit (see, People v Bing, 76 NY2d 331). Kunzeman, J. P., Sullivan, Lawrence and O’Brien, JJ., concur.