PEOPLE v. TILLMAN (2008)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Randy TILLMAN, Defendant-Appellant.

Decided: October 07, 2008

TOM, J.P., FRIEDMAN, BUCKLEY, ACOSTA, FREEDMAN, JJ.

Robert S. Dean, Center for Appellate Litigation, New York (Laura Burde of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Michael Gross, J.), rendered November 13, 2006, as amended December 1, 2006, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second felony offender, to a term of 6 years, unanimously affirmed.

The court properly denied defendant's request to charge the jury on justification since there was no reasonable view of the evidence, viewed in the light most favorable to the defendant, to support that charge (see People v. Cox, 92 N.Y.2d 1002, 684 N.Y.S.2d 473, 707 N.E.2d 428 [1998] ). The evidence established that, at the time of the assault, the victim was unarmed and backing away, and there was no evidence to the contrary. A justification charge would have called upon the jury to speculate as to an alternative scenario.

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