People v. Kelly

221 A.D.2d 661, 633 N.Y.S.2d 845, 1995 N.Y. App. Div. LEXIS 12407

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feinberg, J.), rendered November 22, 1993, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court properly refused to charge manslaughter in the first degree as a lesser included offense of murder in the second degree since there was no reasonable view of the evidence to support submitting the lesser charge to the jury (see, CPL 300.50 [1]; People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427). Unrefuted eyewitness testimony established that the defendant pulled out his gun, aimed it at the head of the person with whom he was arguing, and fired a single shot at close range, missing his target but hitting the victim in the head. According to the defendant’s statement to the police, he pulled out his gun, stated “you’re played out” to the person with whom he was arguing, and fired a single shot. Thus, the trial court properly determined that the evidence did not support a finding that the defendant intended to cause serious physical injury rather than death (see, People v Evans, 192 AD2d 671; People v Rielly, 190 AD2d 695; People v Green, 143 AD2d 768; People v Burke, 73 AD2d 627).

The defendant’s remaining contentions are without merit. Bracken, J. P., Sullivan, Miller and Florio, JJ., concur.