People v. Figueroa

226 A.D.2d 123, 640 N.Y.S.2d 50, 1996 N.Y. App. Div. LEXIS 3316

Opinion

Judgment, Supreme Court, Bronx County (William Wallace, III, J.), rendered December 22, 1993, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

Defendant’s challenge to the subjective element of the court’s justification charge is unpreserved for review (People v Morales, 210 AD2d 173, lv denied 84 NY2d 1035), and we decline to review it in the interest of justice. Were we to review it, we would find that the court adequately charged the jurors to place themselves in defendant’s circumstances when it instructed them to assess defendant’s belief that defensive use of deadly physical force was necessary based upon all of the evidence and what occurred before and during the incident (People v Gordon, 223 AD2d 372). Moreover, "further elaboration about the 'subjective’ factors * * * would, in any event, have been unnecessary in this case since these factors could not reasonably have played any role in the jurors’ assessment of the evidence” (People v Hagi, 169 AD2d 203, 211, lv denied 78 NY2d 1011).

Defendant’s sentence was not excessive in light of the brutal nature of his crime—defendant fired six shots at the unarmed victim who was running away from him, striking him three times. Concur—Milonas, J. P., Ellerin, Rubin, Ross and Mazzarelli, JJ.