187 A.D.2d 312 | N.Y. App. Div. | 1992
Judgment, Supreme Court, New York County (Frederic Berman, J.), rendered November 9, 1990, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent
Defendant claimed that he suspected the victim, his mother’s long-time next door neighbor, of perpetrating a robbery in her apartment. After a chance encounter between defendant and the victim, a verbal altercation ensued. The altercation turned physical, and as the two men struggled down a staircase, defendant fired four bullets into the victim. Defendant claimed that the victim had reached for defendant’s shoulder gun first. Medical evidence showed that the bullets were fired as the victim was in a crouched position.
Viewing the evidence in a light most favorable to the People (People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932), defendant’s guilt was proved beyond a reasonable doubt by legally sufficient evidence. The jury was free to reject defendant’s evidence, and could have reasonably inferred his intent to kill, rather than merely injure, from the number of shots fired at close range in the direction of the victim’s vital organs (see, People v Milea, 112 AD2d 1011, 1013, lv denied 66 NY2d 921).
Under the standards established in People v Goetz (68 NY2d 96, 106), defendant’s justification defense was disproved beyond a reasonable doubt by evidence showing that defendant could have retreated with complete safety (Penal Law § 35.15 [2] [a]), and the number of shots fired into the victim (see, People v Major, 116 AD2d 594). Nor did defendant testify that he feared for his life. Finally, we find no basis to disturb the sentencing court’s exercise of discretion (People v Farrar, 52 NY2d 302). Concur—Sullivan, J. P., Milonas, Rosenberger, Ross and Asch, JJ.
