PEOPLE v. DiGUGLIELMO (1999)

Appeal by the defendant from a judgment of the County Court, Westchester County (Leavitt, J.), rendered December 15, 1997, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find the defense of justification was disproved beyond a reasonable doubt (see, People v. McManus, 67 N.Y.2d 541, 546-547, 505 N.Y.S.2d 43, 496 N.E.2d 202).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).  Although the defendant claimed that he fired three times without warning because he reasonably believed that the victim was threatening his father with a baseball bat, the jury had ample basis to conclude otherwise.   The victim was described as holding the bat in a defensive manner by the eyewitnesses to the fatal shooting, and at least one witness, a ten-year-old child, heard the victim screaming “No” and “Get away from me” right before the defendant shot him.

 Evidence of the victim's quarrelsome or violent nature is only admissible to support a justification defense where the defendant is aware of that reputation (see, Matter of Robert S., 52 N.Y.2d 1046, 438 N.Y.S.2d 509, 420 N.E.2d 390;  People v. Miller, 39 N.Y.2d 543, 384 N.Y.S.2d 741, 349 N.E.2d 841;  People v. Rodawald, 177 N.Y. 408, 70 N.E. 1).   Accordingly, the trial court properly precluded the defense from introducing such evidence.   Moreover, the court's justification charge with respect to defense of a third person, when viewed as a whole, adequately conveyed the proper standards to be applied (see, People v. Coleman, 70 N.Y.2d 817, 523 N.Y.S.2d 433, 517 N.E.2d 1319;  People v. Crouch, 239 A.D.2d 597, 658 N.Y.S.2d 979).

Contrary to the defendant's present claims, the court's procedure for responding to requests from the jury was proper and did not constitute inherently prejudicial error requiring reversal (see, People v. Cook, 85 N.Y.2d 928, 626 N.Y.S.2d 1000, 650 N.E.2d 847;  People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189;  People v. Heath, 234 A.D.2d 388, 651 N.Y.S.2d 551).   The trial court providently exercised its discretion in framing its responses to the jury's requests for supplemental instructions and testimonial readbacks (see, People v. Malloy, 55 N.Y.2d 296, 302, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.