People v. Casado

• Decision Date: 04 November 1991
• Citation: 575 N.Y.S.2d 712,177 A.D.2d 497
• Parties: The PEOPLE, etc., Respondent, v. Guillermo CASADO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 712

575 N.Y.S.2d 712

177 A.D.2d 497

The PEOPLE, etc., Respondent, v. Guillermo CASADO, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 4, 1991.

Philip L. Weinstein, New York City (Laura Hurwitz, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay Cohen, Victor Barall, and Mitchell C. Sockett, of counsel), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, EIBER and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Zweibel, J.), rendered September 6, 1989, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contentions, the trial court did not commit reversible error by refusing his request for a justification charge (see, Penal Law § 35.15). It is well settled that a court need not charge the defense of justification if, considering the record in the light most favorable to the defendant, no reasonable view of the evidence establishes the elements of the defense (see, People v. Reynoso, 73 N.Y.2d 816, 537 N.Y.S.2d 113, 534 N.E.2d 30; People v. Watts, 57 N.Y.2d 299, 456 N.Y.S.2d 677, 442 N.E.2d 1188; People v. Pichardo, 168 A.D.2d 577, 562 N.Y.S.2d 792; People v. Stamen, 163 A.D.2d 499, 558 N.Y.S.2d 175; People v. Russell, 161 A.D.2d 815, 556 N.Y.S.2d 143). In this case, reviewing the record in the light most favorable to the defendant, the competent evidence established that he shot and killed the decedent at close range after seeking to rekindle the flames of a prior controversy. Two witnesses observed the altercation yet neither reported seeing the decedent take any aggressive actions. Rather, the evidence established that the defendant was the initial aggressor (see, People v. Fason, 135 A.D.2d 983, 522 N.Y.S.2d 704) and, with a gun pointed at the chest of his unarmed victim, was in complete control of the situation throughout. Moreover, even if we credit the defendant's unsupported contention that he might have reasonably believed the decedent to be armed, the evidence demonstrated that the defendant made no attempt to withdraw from the conflict although he could have done so in complete safety (see, People v. Behlin, 150 A.D.2d 591, 541 N.Y.S.2d 459). Indeed, after removing an unidentified object from the decedent's possession, which object the defendant now argues...