PEOPLE v. MORENO (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered September 6, 2002, convicting him of murder in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The evidence adduced at trial established that during the course of an attempt to rob the victim of his necklace and in furtherance thereof, the defendant shot the victim from approximately two to three feet away and the victim died from a single gunshot wound to the throat.   The defendant was convicted of murder in the first degree (see Penal Law § 125.27[1][a][vii] ).   The defendant contends that the Supreme Court erred in denying his request to charge manslaughter in the first degree (see Penal Law § 125.20[1] ) to the jury as a lesser-included offense (see CPL 300.50[1], [2] ).   He also contends that the sentence imposed was excessive.

Viewing the evidence in the light most favorable to the defendant (see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225), there was no reasonable view of the evidence to support a finding that the defendant intended to cause serious physical injury to the victim rather than to kill him (see People v. Wheeler, 257 A.D.2d 673, 685 N.Y.S.2d 94;  People v. Kelly, 221 A.D.2d 661, 662, 633 N.Y.S.2d 845).   Accordingly, the Supreme Court correctly refused to charge manslaughter in the first degree as a lesser-included offense.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).