Opinion
October 8, 1996.
Judgment, Supreme Court, New York County (Juanita Bing Newton, J.), rendered September 8, 1994, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 7 to 21 years and 5 to 15 years, respectively, unanimously affirmed.
Before: Rosenberger, J. P., Ellerin, Williams, Mazzarelli and Andrias, JJ.
The trial court properly declined to charge the jury on the defense of justification since there was no objective view of the evidence that would support a finding that defendant's belief that the victim was using or about to use deadly physical force was reasonable (Penal Law § 35.15 [a]; Matter of Y. K., 87 NY2d 430) at the time defendant fatally shot the victim. Although defendant testified that the victim reached toward his waist immediately before the shooting, defendant acknowledged that he did not see any weapon on the victim's person and that he did not give the victim a chance to turn around before repeatedly shooting him in the back. Defendant claimed that the victim kept looking at him right before the shooting and that defendant feared that the victim would again attack him as in the past. However, defendant did not explain why that final encounter posed a threat of deadly physical force when their previous exchanges of glances minutes earlier did not. Finally, we note that defendant offered no convincing reason as to why he did not retreat from the scene at the time of the actual shooting.