Opinion
March 6, 1995
Appeal from the Supreme Court, Kings County (Rivera, J.).
Ordered that the judgment is affirmed.
The defendant contends that the court erred in rejecting his request to charge the jury that he was justified in using deadly physical force in order to prevent the commission of a robbery or a burglary (see, Penal Law § 35.15 [b], [c]; § 35.20 [3]). We disagree. Viewing the testimony in the light most favorable to the defendant (see, People v. Watts, 57 N.Y.2d 299), we find that there is no reasonable view of the evidence from which the jury could conclude that the victim was attempting to commit or was committing either a robbery or a burglary (see, People v Godfrey, 80 N.Y.2d 860; People v. Ducksworth, 209 A.D.2d 536; People v. Flores, 139 A.D.2d 525). Accordingly, the trial court properly charged justification pursuant to a theory of self-defense (see, Penal Law § 35.15 [a]), while declining to submit to the jury the defense of justification under theories that the victim was involved in the commission of a robbery or burglary.
The defendant's sentence is neither unduly harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80). Bracken, J.P., Sullivan, Miller and Goldstein, JJ., concur.