Opinion
784
April 10, 2003.
Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered August 31, 2000, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 25 years, unanimously affirmed.
Cynthia J. Pree, for respondent.
Andrew C. Fine, for defendant-appellant.
Before: Tom, J.P., Mazzarelli, Ellerin, Lerner, Marlow, JJ.
Defendant's request for a justification charge was properly denied since there was no reasonable view of the evidence, viewed in a light most favorable to defendant, that would support such a charge (see People v. Watts, 57 N.Y.2d 299, 301-302). The evidence established that defendant shot the victim from a hiding place where defendant was lying in wait. This premeditated ambush was antithetical to a justification defense (see People v. Johnson, 186 A.D.2d 60), and defendant's suggestion that the victim may have been the aggressor rests on speculation. Additionally, the evidence established that defendant could have retreated from the scene in complete safety. Although the People did not oppose a justification charge, the court, after according defendant an opportunity to be heard, expressly ruled on the issue (see CPL 470.05; compare People v. Chavis, 91 N.Y.2d 500, 506).
Similarly, defendant's request for submission of second-degree manslaughter was properly denied as unsupported by a reasonable view of the evidence, viewed most favorably to defendant (see People v. Choi, 248 A.D.2d 165, lv denied 92 N.Y.2d 849). Defendant's conduct in hiding in the stairwell, aiming his weapon, and shooting the victim as he exited his apartment was an intentional act, which, at the very least, was calculated to inflict serious physical injury.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.