PEOPLE v. SPEARS (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered October 8, 1998, 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.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the trial court correctly refused to charge manslaughter in the first degree as a lesser-included offense of murder in the second degree, as there was no reasonable view of the evidence that would support a finding that the defendant intended to cause serious physical injury rather than death (see, CPL 300.50[1];  People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376;  People v. Green, 56 N.Y.2d 427, 452 N.Y.S.2d 389, 437 N.E.2d 1146).   The defendant and his accomplice fired nine shots at the victim.   The victim suffered six wounds, including one to the head resulting from a shot fired at a distance of two inches or less, one to the chest, one to the neck, and three to the back.   This evidence concerning the number and location of the wounds, and the other circumstances of the shooting, support the trial court's conclusion that the submission of the lesser-included offense of manslaughter in the first degree to the jury was not warranted (see, e.g., People v. Kelly, 221 A.D.2d 661, 633 N.Y.S.2d 845;  People v. Dennis, 208 A.D.2d 945, 617 N.Y.S.2d 908;  People v. Porteous, 193 A.D.2d 631, 597 N.Y.S.2d 446;  People v. Rielly, 190 A.D.2d 695, 593 N.Y.S.2d 275;  People v. Boo Wat Cheung, 141 A.D.2d 556, 529 N.Y.S.2d 165).

MEMORANDUM BY THE COURT.