PEOPLE v. WHITE (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered February 24, 2003, convicting her 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 modified, on the law, by vacating the conviction of murder in the second degree, vacating the sentence imposed thereon, and remitting the matter to the Supreme Court, Kings County, for a new trial on that count;  as so modified, the judgment is affirmed.

The defendant was convicted of murder in the second degree following the shooting death of her estranged boyfriend while the two were seated in the front seat of his vehicle.   The defendant testified that the gun discharged while the victim, who was much larger and heavier than she, was choking and punching her.   Based on this testimony, there was a reasonable basis for the submission of the defense of justification to the jury for its consideration (see People v. Magliato, 68 N.Y.2d 24, 505 N.Y.S.2d 836, 496 N.E.2d 856;  People v. McManus, 67 N.Y.2d 541, 505 N.Y.S.2d 43, 496 N.E.2d 202;  People v. Daniels, 248 A.D.2d 723, 670 N.Y.S.2d 566;  People v. Giamanco, 188 A.D.2d 547, 591 N.Y.S.2d 449;  cf. People v. Padgett, 60 N.Y.2d 142, 146, 468 N.Y.S.2d 854, 456 N.E.2d 795;  People v. Collins, 290 A.D.2d 457, 736 N.Y.S.2d 109).

The defendant's remaining contentions either are without merit or need not be addressed in light of our determination.