People v. Porteous

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered May 30, 1990, convicting him of murder in the second degree (two counts) and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the court did not err in refusing to charge the lesser-included offenses of manslaughter in the first degree and manslaughter in the second degree. It is axiomatic that in considering a request to charge lesser-included crimes, the evidence should be viewed in the light most favorable to the defendant (see, People v Martin, 59 NY2d 704). However, in the case at bar, given the uncontroverted fact that the defendant shot his two defenseless victims in the head and body a combined total of eight times, and from a distance of less than two feet, we cannot agree with the defendant that a reasonable view" of the evidence could have supported a finding that he committed either of the lesser-included offenses (see, People v Glover, 57 NY2d 61; People v Moore, 135 AD2d 839; People v Green, 134 AD2d 516).

The defendant’s further contention, raised in his supplemental pro se brief, that he was denied a public trial is unpreserved for appellate review (see, CPL 470.05 [2]; People v Baez, 162 AD2d 602). In any event, his contention is belied by the record, which indicates that the courtroom doors were locked only while the jury was being charged. Such a procedure has been specifically approved by the Court of Appeals (see, People v Colon, 71 NY2d 410, 418, cert denied 487 US 1239).

Nor do we find merit to the defendant’s argument that he was denied his right to receive meaningful notice of a substantive juror inquiry (see, CPL 310.30). The defendant expressly agreed that the jury could be given any requested evidence without the necessity of appearance by either counsel. When the jury requested "all pictures” and the "DD5 from [a nonexistent witness]”, the court did not inform the attorneys, but responded by furnishing the jury with all photographs which had been admitted into evidence. Certainly, it would have been better practice for the court to seek clarification from the *632jury with respect to this request. However, in view of the defendant’s waiver and the fact that, after being given the photographic evidence, there was no further communication from the jury regarding any DD5 statements, we conclude that the court’s response did not "[fall] outside the acceptable bounds of its discretion” and thus satisfied the requirement of CPL 310.30 (People v O’Rama, 78 NY2d 270, 278-279; see, People v Miller, 163 AD2d 491, 492; cf., People v DeRosario, 81 NY2d 801; People v Lykes, 81 NY2d 767).

We discern no basis for disturbing the court’s imposition of consecutive maximum sentences upon the defendant (see, People v Suitte, 90 AD2d 80, 83). Sullivan, J. P., Pizzuto and Santucci, JJ., concur.