Opinion
November 18, 1993
Appeal from the Supreme Court, Bronx County (Ivan Warner, J.).
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), defendant's guilt of the crime charged was proven beyond a reasonable doubt (People v Bleakley, 69 N.Y.2d 490, 495). The record indicates that there were at least three people in the restaurant when defendant drew and fired his gun at the unarmed complainant. Additionally, there were no significant discrepancies in the testimony of the complainant, and the testimony that the complainant had filed a civil law suit in this matter does not render his testimony incredible as a matter of law. Rather, the jury's findings regarding credibility, not unreasonable, will not be disturbed by this Court (People v Fonte, 159 A.D.2d 346, lv denied 76 N.Y.2d 734).
In view of the fact that the only count submitted to the jury under this one-count indictment was reckless endangerment in the first degree, it is highly unlikely that the trial court's justification charge prompted the jury to speculate that defendant was indicted and tried for assaulting the complainant. Rather, the trial court's jury charge on justification was most beneficial to defendant, as there was some testimony by defendant that he believed it was necessary for him to use deadly physical force to defend himself against the imminent use of deadly physical force by the complainant, and thus that he was justified in drawing his gun in the restaurant premises (see, People v Johnson, 196 A.D.2d 470).
Concur — Carro, J.P., Rosenberger, Ellerin and Asch, JJ.