Opinion
February 24, 1994
Appeal from the Supreme Court, New York County (James Leff, J.).
The trial court properly denied defendant's request for a jury charge that defendant would be justified in using deadly physical force against the deceased upon a finding that defendant reasonably believed the deceased was about to commit a robbery against defendant. Defendant's own testimony was that, believing the victim approached for the purpose of beating him, he shot at the victim from a distance of approximately one car length, without any indication from the victim that he intended to rob defendant. In these circumstances, a finding that a robbery was imminent would be unreasonable, and thus the requested charge was properly denied (see, People v. Rivera, 138 A.D.2d 169, 174, lv denied 72 N.Y.2d 923).
The charge as a whole conveyed the appropriate legal principles (People v. Coleman, 70 N.Y.2d 817, 819). While the trial court, ideally, could have gone further in outlining the subjective elements to be considered, under the circumstances of this case, where lengthy testimony and summations detailed such elements, and the trial court directed the jury's attention to the respective arguments in the context of instructing that the relevant determination must be made by consideration of all competent evidence, including defendant's background, knowledge, and experience, as well as the particular circumstances in which defendant found himself, the charge, in substance, appropriately directed the jury's attention to the subjective factors involved (People v. Wesley, 76 N.Y.2d 555), and fairly comported with the requirements of Penal Law § 35.15 (see, People v. Madden, 171 A.D.2d 558, 559, lv denied 78 N.Y.2d 969).
We perceive no abuse of discretion in sentencing.
Concur — Rosenberger, J.P., Ross, Asch, Rubin and Williams, JJ.