People v. Morales

Appellate Division of the Supreme Court of New York

People v. Morales

11 A.D.3d 259, 782 N.Y.S.2d 437, 2004 N.Y. App. Div. LEXIS 11810

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 12, 2004

StatusPublished

Cited by2 cases

This text of 11 A.D.3d 259 (People v. Morales) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Morales, 11 A.D.3d 259, 782 N.Y.S.2d 437, 2004 N.Y. App. Div. LEXIS 11810 (N.Y. Ct. App. 2004).

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Opinion

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered June 17, 2002, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 25 years to life and 5 to 15 years, respectively, unanimously affirmed.

The court properly declined to charge justification since there was no reasonable view of the evidence, when viewed most favorably to defendant, to support such a defense. Even under defendant’s version of the facts, he was clearly the initial aggressor when he pointed a pistol at his naked, unarmed victim (see People v Ross, 197 AD2d 713, 714 [1993], lv denied 82 NY2d 902 [1993]; People v Casado, 177 AD2d 497 [1991], lv denied 79 NY2d 854 [1992]; see also People v Magliato, 68 NY2d 24 [1986]), and the force he used against the victim was clearly unreasonable (see generally People v Goetz, 68 NY2d 96 [1986]).

Were we to find that the court erred in allowing the People to attempt to refresh defendant’s recollection with a writing when defendant had not professed a failure of memory, we would find the error to be harmless (see People v Varela, 272 AD2d 243 [2000], lv denied 95 NY2d 939 [2000]). Concur—Buckley, P.J., Nardelli, Andrias, Saxe and Lerner, JJ.

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Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered June 17, 2002, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 25 years to life and 5 to 15 years, respectively, unanimously affirmed.

The court properly declined to charge justification since there was no reasonable view of the evidence, when viewed most favorably to defendant, to support such a defense. Even under defendant’s version of the facts, he was clearly the initial aggressor when he pointed a pistol at his naked, unarmed victim (see People v Ross, 197 AD2d 713, 714 [1993], lv denied 82 NY2d 902 [1993]; People v Casado, 177 AD2d 497 [1991], lv denied 79 NY2d 854 [1992]; see also People v Magliato, 68 NY2d 24 [1986]), and the force he used against the victim was clearly unreasonable (see generally People v Goetz, 68 NY2d 96 [1986]).

Were we to find that the court erred in allowing the People to attempt to refresh defendant’s recollection with a writing when defendant had not professed a failure of memory, we would find the error to be harmless (see People v Varela, 272 AD2d 243 [2000], lv denied 95 NY2d 939 [2000]). Concur—Buckley, P.J., Nardelli, Andrias, Saxe and Lerner, JJ.

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Bluebook (online)

11 A.D.3d 259, 782 N.Y.S.2d 437, 2004 N.Y. App. Div. LEXIS 11810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-morales-nyappdiv-2004.

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