People v. Small

• Decision Date: 25 January 2011
• Citation: 80 A.D.3d 786,915 N.Y.S.2d 501
• Parties: The PEOPLE, etc., respondent, v. Bernard SMALL, appellant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 501

80 A.D.3d 786

The PEOPLE, etc., respondent,

v.Bernard SMALL, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 25, 2011.

Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Allison Ageyeva of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered September 3, 2008, 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.

The Supreme Court properly denied the defendant's requestfor a justification charge since no reasonable view of the evidence supported such a charge ( see Penal Law § 35.15[2][a]; People v. Umali, 10 N.Y.3d 417, 425, 859 N.Y.S.2d 104, 888 N.E.2d 1046, cert. denied, --- U.S. ----, 129 S.Ct. 1595, 173 L.Ed.2d 685; People v. Petty, 7 N.Y.3d 277, 284, 819 N.Y.S.2d 684, 852 N.E.2d 1155; People v. Goetz, 68 N.Y.2d 96, 105-106, 506 N.Y.S.2d 18, 497 N.E.2d 41; People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188; People v. Ojar, 38 A.D.3d 684, 685, 832 N.Y.S.2d 250). The defendant shot the victim, who was unarmed, and the evidence indicates that the defendant had no reason to believe that the victim was armed or was about to use deadly physical force against him, or that the defendant could not retreat in complete safety ( see People v. Watts, 57 N.Y.2d at 302, 456 N.Y.S.2d 677, 442 N.E.2d 1188; People v. Dickerson, 67 A.D.3d 700, 701, 889 N.Y.S.2d 199; People v. Simon, 56 A.D.3d 804, 804-805, 868 N.Y.S.2d 151; People v. Krebs, 11 A.D.3d 713, 784 N.Y.S.2d 564; People v. Snell, 256 A.D.2d 480, 481, 682 N.Y.S.2d 80; People v. Davis, 232 A.D.2d 209, 648 N.Y.S.2d 79; compare People v. Arzu, 7 A.D.3d 458, 459, 777 N.Y.S.2d 485; People v. Khan, 113 A.D.2d 773, 774, 493 N.Y.S.2d 364, affd. 68 N.Y.2d 921, 510 N.Y.S.2d 72, 502 N.E.2d 987).

The defendant's remaining contention regarding his conviction of criminal possession of a weapon in the second degree is without merit ( see People v. Pons, 68 N.Y.2d 264, 265, 508 N.Y.S.2d 403, 501 N.E.2d 11; People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463; People v. Khan, 113 A.D.2d at 774, 493 N.Y.S.2d 364; but see People v. Aruz, 253 A.D.2d 592, 595, 677 N.Y.S.2d 322).

FLORIO, J.P., ENG, BELEN and AUSTIN, JJ., concur.