PEOPLE v. POLANCO (2020)

Judgment, Supreme Court, New York County (Ann E. Scherzer, J.), rendered August 15, 2018, convicting defendant, after a jury trial, of assault in the first degree, and two counts of criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentences to concurrent terms of 6 years, 31/212 years and 31/212 years, respectively, and otherwise affirmed.

The court properly denied defendant's request for a justification charge.  Viewing the evidence, including defendant's testimony and a surveillance videotape of the incident, in the light most favorable to defendant, we find no reasonable view of the evidence to support such a charge.  There was no such view of the evidence that defendant had an objectively reasonable belief that the victim was about to use deadly physical force against defendant or his mother, and that it was necessary for defendant to shoot the victim (see Penal Law § 35.15[1], [2][a];  People v. Cox, 92 N.Y.2d 1002, 1004, 684 N.Y.S.2d 473, 707 N.E.2d 428 [1998];  People v. Goetz, 68 N.Y.2d 96, 114–15, 506 N.Y.S.2d 18, 497 N.E.2d 41 [1986]).

We find the sentence excessive to the extent indicated.