Opinion
June 17, 1985
Appeal from the Supreme Court, Queens County (O'Brien, J.).
Judgment affirmed.
Under the facts of this case, the jury could "conclude that it was not a reasonable possibility" that defendant's "conduct is equally consistent with" an intent to merely seriously injure rather than to kill ( People v. Bracey, 41 N.Y.2d 296, 302). Therefore, there is no basis for reducing the conviction of murder in the second degree to manslaughter in the first degree, as defendant urges on appeal ( cf. People v. Marrero, 67 A.D.2d 951).
We find that the rebuttal testimony, while improperly introduced solely to impeach defendant's credibility, was harmless error and did not deprive defendant of a fair trial ( People v. Crimmins, 36 N.Y.2d 230). We find no merit to defendant's remaining contentions. Mangano, J.P., Bracken, Rubin and Kunzeman, JJ., concur.