Opinion
March 6, 1995
Appeal from the Supreme Court, Kings County (Demarest, J.).
Ordered that the judgment, as amended, is affirmed.
The court properly granted the People's request to charge manslaughter in the first degree as a lesser included offense of murder in the second degree (see, People v. Glover, 57 N.Y.2d 61; People v. Stevens, 186 A.D.2d 832). A reasonable view of the evidence supports a finding that the defendant committed the lesser offense of manslaughter in the first degree rather than the greater one of murder in the second degree. As such, the question of the defendant's intent was properly left for the jury (see, People v. Butler, 57 N.Y.2d 664; People v. Moran, 246 N.Y. 100; People v. Stevens, 186 A.D.2d 832, supra). The defendant shot the victim as the defendant was running away from him. Although the fatal shot hit the victim in the head, the defendant did not face the victim when he fired the shots, nor did the defendant take deliberate aim before or while firing. Accordingly the facts did not preclude a finding that the defendant only intended to injure the victim (see, People v Butler, 57 N.Y.2d 664, supra; People v. Alamo, 128 A.D.2d 441).
Further, a review of the charge reveals that the trial court marshaled the evidence in a fair and even-handed manner and did not give undue emphasis to the People's evidence or theories (see, People v. Saunders, 64 N.Y.2d 665). Rosenblatt, J.P., Lawrence, Altman and Hart, JJ., concur.