Opinion
June 6, 1988
Appeal from the Supreme Court, Queens County (Dunkin, J.).
Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by reducing the minimum term of the sentence for attempted murder in the second degree from 12 1/2 to 8 1/3 years; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to convict the defendant of the crimes charged. Despite being shot five times, the victim Mary Wong survived to identify the defendant as her attacker and as 1 of 2 men who shot her boyfriend to death in the bedroom of their apartment. The defendant's contention that this single eyewitness's testimony was too contradictory to support his conviction (see, People v Jackson, 65 N.Y.2d 265) is without merit. We note that the defendant's own testimony placed him in the apartment at the time of the shootings.
The court did not err in refusing to charge the lesser included offenses of manslaughter in the first and second degrees. In considering a request to charge lesser included crimes, the evidence should be viewed in the light most favorable to the defendant (see, People v Martin, 59 N.Y.2d 704). Here the defendant's testimony, if believed, would not support a manslaughter charge since he denied firing a gun and blamed the shootings on others in the apartment that morning. In addition, there is no reasonable view of the People's evidence from which the jury could find that the defendant's intent was to cause the victim serious physical injury or that he acted recklessly in causing the victim's death (see, People v Green, 56 N.Y.2d 427, rearg denied 57 N.Y.2d 775). The evidence that the victim was shot 11 times is sufficient to prove beyond a reasonable doubt that the defendant's intent was to cause death (see, e.g., People v Milea, 112 A.D.2d 1011, lv denied 66 N.Y.2d 921).
The imposition of consecutive sentences is legally permissible where serious injury to one victim and the shooting of the other are separate acts (see, e.g., People v Truesdell, 70 N.Y.2d 809; People v Sanchez, 131 A.D.2d 606, lv denied 70 N.Y.2d 717). The imposition of consecutive sentences on this defendant was not unduly harsh and excessive in view of the evidence that the shootings were in the nature of cold-blooded executions. However, attempted murder in the second degree was erroneously considered an armed felony when sentence was imposed. We therefore reduce the sentence on that count to 8 1/3 to 25 years (see, People v Battles, 117 A.D.2d 509, lv denied 68 N.Y.2d 665).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Kunzeman, J.P., Kooper, Sullivan and Balletta, JJ., concur.