People v. Ruiz

138 A.D.2d 420, 525 N.Y.S.2d 702, 1988 N.Y. App. Div. LEXIS 2130

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered February 4, 1987, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that he was denied a fair trial by the court’s failure to give a robbery justification charge pursuant to Penal Law § 35.15 (2) (b), based on his contention that he was the victim of a robbery. We disagree. On this record, there is no reasonable view of the evidence from which the jury could have concluded that the defendant was the victim of a robbery (see, People v Watts, 57 NY2d 299, 301). Viewing the evidence in the light most favorable to the accused, the defendant’s version of the incident is that prior to the shooting, his victims sought to collect their winnings on a "number” which had not been purchased in the defendant’s store. Thus, this was not a robbery attempt but a dispute over whether the number had in fact been sold by the defendant. Since there is no basis in the record to conclude that the requisite elements of justification were present, the trial court was under no obligation to submit the requested charge to the jury (see, People v Alston, 104 AD2d 653, 654; cf., People v Fuller, 74 AD2d 879).

We have examined the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Kunzeman, J. P., Fiber, Harwood and Balletta, JJ., concur.