PEOPLE v. MORALES (2004)

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered June 17, 2002, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 25 years to life and 5 to 15 years, respectively, unanimously affirmed.

The court properly declined to charge justification since there was no reasonable view of the evidence, when viewed most favorably to defendant, to support such a defense.   Even under defendant's version of the facts, he was clearly the initial aggressor when he pointed a pistol at his naked, unarmed victim (see People v. Ross, 197 A.D.2d 713, 714, 602 N.Y.S.2d 919 [1993], lv. denied 82 N.Y.2d 902, 610 N.Y.S.2d 169, 632 N.E.2d 479 [1993];  People v. Casado, 177 A.D.2d 497, 575 N.Y.S.2d 712 [1991], lv. denied 79 N.Y.2d 854, 580 N.Y.S.2d 726, 588 N.E.2d 761 [1992];  see also People v. Magliato, 68 N.Y.2d 24, 505 N.Y.S.2d 836, 496 N.E.2d 856 [1986] ), and the force he used against the victim was clearly unreasonable (see generally People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41 [1986] ).

Were we to find that the court erred in allowing the People to attempt to refresh defendant's recollection with a writing when defendant had not professed a failure of memory, we would find the error to be harmless (see People v. Varela, 272 A.D.2d 243, 708 N.Y.S.2d 80 [2000], lv. denied 95 N.Y.2d 939, 721 N.Y.S.2d 616, 744 N.E.2d 152 [2000] ).