Opinion
November 10, 1992
Appeal from the Supreme Court, New York County (Frederic Berman, J.).
Defendant claimed that he suspected the victim, his mother's long-time next door neighbor, of perpetrating a robbery in her apartment. After a chance encounter between defendant and the victim, a verbal altercation ensued. The altercation turned physical, and as the two men struggled down a staircase, defendant fired four bullets into the victim. Defendant claimed that the victim had reached for defendant's shoulder gun first. Medical evidence showed that the bullets were fired as the victim was in a crouched position.
Viewing the evidence in a light most favorable to the People (People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), defendant's guilt was proved beyond a reasonable doubt by legally sufficient evidence. The jury was free to reject defendant's evidence, and could have reasonably inferred his intent to kill, rather than merely injure, from the number of shots fired at close range in the direction of the victim's vital organs (see, People v Milea, 112 A.D.2d 1011, 1013, lv denied 66 N.Y.2d 921).
Under the standards established in People v Goetz ( 68 N.Y.2d 96, 106), defendant's justification defense was disproved beyond a reasonable doubt by evidence showing that defendant could have retreated with complete safety (Penal Law § 35.15 [a]), and the number of shots fired into the victim (see, People v Major, 116 A.D.2d 594). Nor did defendant testify that he feared for his life. Finally, we find no basis to disturb the sentencing court's exercise of discretion (People v Farrar, 52 N.Y.2d 302).
Concur — Sullivan, J.P., Milonas, Rosenberger, Ross and Asch, JJ.