Opinion
February 2, 1987
Appeal from the Supreme Court, Kings County (Fuchs, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the defendant's conviction of criminal possession of a weapon in the second degree from 6 to 12 years' imprisonment to 5 to 10 years' imprisonment. As so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the People, the defendant's guilt was proven beyond a reasonable doubt (see, People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932). Specifically, the jury could reasonably have inferred from the facts proven that the defendant intended to cause physical injury to the victim and to unlawfully use a weapon against another (cf., People v. Castillo, 47 N.Y.2d 270).
The defendant's claim of error with respect to the court's charge on the subject of flight is also without merit. There was more than sufficient evidence to warrant such a charge, and the defendant's innocent explanation for his departure from the scene of the shooting merely presented a question of fact for the jury to resolve.
The defendant's contentions regarding the prosecutor's cross-examination and summation are either unpreserved or have no merit.
Under the unusual circumstances of this case, however, we will exercise our discretion to impose the sentence which the sentencing court, upon reconsideration, felt would have been more appropriate but felt it was powerless to impose. Niehoff, J.P., Rubin, Lawrence and Sullivan, JJ., concur.