Summary
In People v. Hodge, 561 N.Y.S.2d 749, 167 A.D.2d 251 (1st Dept. 1990), the defendant argued with the victim and returned soon after with a gun, struck the victim with the gun and then shot twice at the victim, at close range; the second shot hit the victim behind the ear and killed him.
Summary of this case from McMillon v. CulleyOpinion
November 20, 1990
Appeal from the Supreme Court, Bronx County, Frank Diaz, J.
Defendant was arrested and charged with murder in the second degree and manslaughter in the first degree arising from the shooting death of Schvoan Topping on December 8, 1987. After jury trial, defendant was found guilty of manslaughter in the first degree, pleaded guilty to criminal possession of a weapon in the third degree and was sentenced as noted above.
On appeal, defendant contends that the trial court erred in refusing defendant's request for a jury charge of manslaughter in the second degree as a lesser included offense of both murder in the second degree and manslaughter in the first degree, on the basis that a reasonable view of the evidence presented at trial would support the inclusion of such lesser included charge.
At trial, four eyewitnesses, and defendant himself, testified that they and the victim were part of a group talking on a street corner; that defendant left the scene after a verbal argument with the victim and returned approximately 10 minutes later with a gun; that defendant first struck the victim with the gun and then shot twice at the victim, within close range, the second shot hitting the victim behind the right ear and killing him. Defendant himself testified that at no time was the victim armed, nor did he attempt at any time to strike the defendant. Defendant also testified that his intent in shooting at the victim the second time was to injure him. By no reasonable view of the evidence presented at trial could the jury have concluded that defendant was guilty of the lesser and not the greater offense, and therefore the trial court properly refused defendant's request for a jury charge of the lesser included offense of manslaughter in the second degree. (CPL 300.50; see also, People v. Glover, 57 N.Y.2d 61, 63-64; People v. Green, 56 N.Y.2d 427, 434.)
We perceive no abuse of discretion by the trial court in the imposition of sentence and in the circumstances do not find that sentence to be excessive.
Concur — Murphy, P.J., Kupferman, Milonas, Rosenberger and Ellerin, JJ.