People v. James

284 A.D.2d 549, 727 N.Y.S.2d 626, 2001 N.Y. App. Div. LEXIS 6804

Opinion

—Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered March 1, 1999, convicting him of manslaughter in the first degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, criminal possession of a weapon in the fourth degree, and criminal possession of a controlled substance in the fifth degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court properly refused to consider manslaughter in the second degree as a lesser-included offense of either murder in the second degree or manslaughter in the first degree since no reasonable view of the evidence supported such a charge (see, People v Glover, 57 NY2d 61; People v Kelly, 221 AD2d 661, lv denied 87 NY2d 974, cert denied 517 US 1200; People v Evans, 192 AD2d 671; People v Vanier, 178 AD2d 501). There is no reasonable view of the evidence that would allow a fact-finder to conclude that the defendant may have acted with a reckless disregard of a substantial risk to the decedent, but not with the intent to seriously injure him (cf., People v Morel, 213 AD2d 497; People v Cook, 96 AD2d 1059).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80). Ritter, J. P., Florio, H. Miller and Crane, JJ., concur.