People v. Congelosi

—Judgment unanimously affirmed. Memorandum: Defendant was convicted following a jury trial of murder in the second degree (Penal Law § 125.25 [2]), driving while intoxicated as a felony (Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c]) and other crimes arising from a head-on motor vehicle accident. We reject the contention of defendant that the judgment should be reversed pursuant to People v Williams (92 NY2d 993). County Court’s summary refusal to allow defendant to waive his Antommarchi rights (see, People v Antommarchi, 80 NY2d 247, rearg denied 81 NY2d 759) does not constitute reversible error because the record establishes that there were no sidebar discussions with prospective jurors. The contention of defendant that his attempted waiver encompassed that portion of the voir dire held in the jury room is not properly before us because it is raised for the first time in defendant’s reply brief (see, People v Clanton, 204 AD2d 810, 812, lv denied 83 NY2d 965; see also, People v Abreu, 248 AD2d 124, lv denied 92 NY2d 846; People v Kalaj, 247 AD2d 633, lv denied 92 NY2d 880; People v White, 244 AD2d 765, 767, lv denied 91 NY2d 1014). In any event, that contention is not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). The court properly denied defendant’s motion to suppress the statement, “I had a couple of beers”. Although defendant was handcuffed to a stretcher, he was restrained at the request of medical personnel (see, People v Cole, 233 AD2d 247, 248, lv denied 89 NY2d 984), and the statement was made in response to a police officer’s remark, “it smells like you have been drinking” (see, People v Baker, 188 AD2d 1012, lv denied 81 NY2d 967). We reject defendant’s further contention that the 931 court erred in failing to give a voluntariness instruction with respect to that statement. “A Trial Judge is required to charge on voluntariness only if an issue has been raised at the trial by a proper objection, and evidence sufficient to raise a factual dispute has been adduced either by direct or cross-examination” (People v Cefaro, 23 NY2d 283, 288-289; see, People v Luis, 189 AD2d 657; People v Goodson, 179 AD2d 584, lv denied 79 NY2d 1001; People v Dukes, 156 AD2d 959, lv denied 75 NY2d 918; People v Horn, 152 AD2d 925, lv denied 74 NY2d 897). Defendant further contends that the court abused its discretion in admitting two autopsy photographs in evidence. Defendant withdrew his objection to one of the photographs, however, thereby waiving his present contention with respect to that photograph, and the other was not so inflammatory as to deprive defendant of a fair trial (see, People v Upshaw, 242 AD2d 548, 549, lv denied 91 NY2d 882). We also reject defendant’s contention that the verdict is against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defendant’s contention concerning the court’s failure to give a circumstantial evidence charge is not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Monroe County Court, Egan, J. — Murder, 2nd Degree.) Present — Lawton, J. P., Wisner, Pigott, Jr., Hurlbutt and Scudder, JJ.