Opinion
June 28, 2001.
Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered February 11, 1999, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal use of a firearm in the first degree, and sentencing him to consecutive terms of 12 1/2 to 25 years and 5 years, respectively, unanimously affirmed.
T. Charles Won, for respondent.
Lawrence T. Hausman, for defendant-appellant.
Before: Rosenberger, J.P., Andrias, Lerner, Saxe, Friedman, JJ.
The court properly refused to submit to the jury the lesser included offense of manslaughter in the second degree, since there was no reasonable view of the evidence, viewed most favorably to defendant, that defendant was guilty of the lesser offense but not the greater (see,People v. Green, 56 N.Y.2d 427, 434). Defendant's testimony did not support a theory of reckless homicide.
The court's participation in the examination of defendant was not adversarial and was not so excessive as to deprive defendant of a fair trial, given the court's instructions to the jury (see, People v. Gonzalez, 228 A.D.2d 340, lv denied 88 N.Y.2d 1021).
We perceive no basis for reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.