Opinion
No. 3276.
September 30, 2010.
Judgment, Supreme Court, Bronx County (William I. Mogulescu, J., at dismissal motion; Margaret L. Clancy, J., at jury trial and sentence), rendered June 5, 2009, convicting defendant of assault in the first degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of 15 years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Cynthia A. Carlson of counsel), for respondent.
Before: Mazzarelli, J.P., Sweeny, Catterson, DeGrasse and Manzanet-Daniels, JJ.
The court properly denied defendant's request for a justification charge, since there was no reasonable view of the evidence to support that defense, when viewed in the light most favorable to defendant and with due regard to defendant's right to assert inconsistent defenses. It was undisputed that defendant shot the complainant in the back of the head. The complainant testified that defendant suddenly shot him from behind. While claiming he accidentally shot the complainant after disarming him, defendant unequivocally testified that the complainant was unarmed and retreating when the shots were fired. Hence, even if the jury credited portions of defendant's testimony, there was nothing in the evidence to support a finding that the shooting was intentional, but justified ( see e.g. People v Bennett, 279 AD2d 585, lv denied 96 NY2d 797). To find justification, the jury would have had to "speculate as to an alternative scenario that was not supported by any evidence" ( People v Bonilla, 51 AD3d 585, 585, lv denied 11 NY3d 734).
We have considered and rejected defendant's remaining arguments, including those addressed to the prosecutor's instructions to the grand jury.