People v. Bertone

213 A.D.2d 417, 624 N.Y.S.2d 879

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1995
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rivera, J.), rendered August 19, 1992, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the court erred in rejecting his request to charge the jury that he was justified in using deadly physical force in order to prevent the commission of a robbery or a burglary (see, Penal Law § 35.15 [2] [b], [c]; § 35.20 [3]). We disagree. Viewing the testimony in the light most favorable to the defendant (see, People v Watts, 57 NY2d 299), we find that there is no reasonable view of the evidence from which the jury could conclude that the victim was attempting to commit or was committing either a robbery or a burglary (see, People v Godfrey, 80 NY2d 860; People v Ducksworth, 209 AD2d 536; People v Flores, 139 AD2d 525). Accordingly, the trial court properly charged justification pursuant to a theory of self-defense (see, Penal Law § 35.15 [2] [a]), while declining to submit to the jury the defense of justification under theories that the victim was involved in the commission of a robbery or burglary.

The defendant’s sentence is neither unduly harsh nor excessive (see, People v Suitte, 90 AD2d 80). Bracken, J. P., Sullivan, Miller and Goldstein, JJ., concur.