Opinion
October 29, 1990
Appeal from the County Court, Orange County (Patsalos, J.).
Ordered that the judgment is affirmed.
The defendant argues that the People failed to prove the intent required to establish the crimes of which he was convicted. However, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
Contrary to the defendant's contentions, the testimony of three eyewitnesses who observed the defendant fire shots at the victim more than sufficiently established that the defendant acted with intent to cause serious physical injury (see, Penal Law § 120.10). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
Further, the court did not err in failing to charge the jury with respect to justification and temporary innocent possession of a weapon. We note, initially, that by failing to request those charges, the defendant failed to preserve these claims for appellate review (see, CPL 470.05; People v. Shade, 127 A.D.2d 862; People v. Digugliemo, 124 A.D.2d 743; see also, People v. Mayo, 136 A.D.2d 748). In any event, the court did not commit error by failing to give a justification charge. The record establishes that under no interpretation of the evidence could it have been found that the defendant reasonably believed that deadly physical force was about to be used against him or that he had satisfied his duty to retreat, or was under no such duty (see, People v. Watts, 57 N.Y.2d 299, 302; People v. Collice, 41 N.Y.2d 906, 907; see also, People v. Reynoso, 73 N.Y.2d 816; People v. Goetz, 68 N.Y.2d 96; People v. Behlin, 150 A.D.2d 591). Similarly, "there is no reasonable view of the trial evidence upon which the jury could have found defendant's possession of a loaded [gun] to be innocent and lawful" (People v. Banks, 76 N.Y.2d 799, 800; see also, People v. Snyder, 73 N.Y.2d 900).
We find that the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contentions and find them to be without merit. Kooper, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.