Opinion
4254
October 12, 2004.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered June 17, 2002, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 25 years to life and 5 to 15 years, respectively, unanimously affirmed.
Before: Buckley, P.J., Nardelli, Andrias, Saxe and Lerner, JJ.
The court properly declined to charge justification since there was no reasonable view of the evidence, when viewed most favorably to defendant, to support such a defense. Even under defendant's version of the facts, he was clearly the initial aggressor when he pointed a pistol at his naked, unarmed victim ( see People v. Ross, 197 AD2d 713, 714, lv denied 82 NY2d 902; People v. Casado, 177 AD2d 497, lv denied 79 NY2d 854; see also People v. Magliato, 68 NY2d 24), and the force he used against the victim was clearly unreasonable ( see generally People v. Goetz, 68 NY2d 96).
Were we to find that the court erred in allowing the People to attempt to refresh defendant's recollection with a writing when defendant had not professed a failure of memory, we would find the error to be harmless ( see People v. Varela, 272 AD2d 243, lv denied 95 NY2d 939).