Opinion
2001-05145.
Decided December 8, 2003.
Appeal by the defendant from the judgment of the Supreme Court, Kings County (Lott, J.), rendered June 4, 2001, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, (Sarah J. Berger of counsel), for appellant.
Charles J. Hynes, District Attorney, (Leonard Joblove and Jane S. Meyers of counsel), for respondent.
Before: DANIEL F. LUCIANO, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the trial court properly refused to instruct the jury with respect to manslaughter in the first and second degrees as lesser-included offenses of intentional murder ( see CPL 300.50; People v. Butler, 84 N.Y.2d 627). Under no reasonable view of the evidence could the jury have found that the defendant committed the lesser offenses but not the greater, given the number of shots fired by the defendant at close range into the victim's vital organs as the victim tried to escape ( see People v. Butler, supra; People v. Evans, 192 A.D.2d 671; People v. Rielly, 190 A.D.2d 695). The defendant's claim that he was intoxicated and therefore was entitled to a charge of manslaughter in the second degree as a lesser-included offense of intentional murder is improperly raised for the first time on appeal ( see CPL 470.05; People v. Gray, 86 N.Y.2d 10, 25; People v. Johnston, 166 A.D.2d 667). In any event, the evidence, viewed most favorably to the defendant, did not support the defendant's contention that his alcohol consumption affected his mental capacity to commit intentional murder ( see People v. Butler, supra at 632-633; cf. People v. Gaines, 83 N.Y.2d 925, 926; People v. Rodriguez, 76 N.Y.2d 918, 920-921).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
SMITH, J.P., McGINITY, LUCIANO and TOWNES, JJ., concur.