Opinion
November 9, 1992
Appeal from the Supreme Court, Kings County (Quinones, J.).
Ordered that the judgment is affirmed.
This case involves the shooting death of an innocent victim who was on the street outside his home when he was surrounded by a group of approximately seven youths, one of whom was the defendant. The People presented several eyewitnesses to the shooting who stated that after the youths attempted to rob the victim, a struggle broke out during which the defendant drew a gun and shot the victim twice. The defendant testified in his own behalf and denied that he was the shooter. On appeal, the defendant argues that the medical evidence and certain testimony, which indicated that he was being chased by the victim between the first and second shot supplied a reasonable basis upon which the jury could have concluded that the defendant merely acted recklessly in firing at the victim, and therefore, that the court erred in not submitting manslaughter in the second degree to the jury as a lesser included offense of intentional murder (see, People v Green, 56 N.Y.2d 427; People v Tai, 39 N.Y.2d 894). However, viewing the evidence in a light most favorable to the defendant (see, People v Martin, 59 N.Y.2d 704), we find that no reasonable view of the evidence would support a finding that the shooting was "reckless" and that the defendant committed the lesser offense but not the greater (see, People v Glover, 57 N.Y.2d 61). Thompson, J.P., Bracken, Pizzuto and Santucci, JJ., concur.