PEOPLE v. DICKERSON (2009)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullen, J.), rendered April 11, 2007, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The County Court properly denied the defendant's request to charge manslaughter in the second degree as a lesser-included offense of murder in the second degree.   Viewing the evidence in the light most favorable to the defendant, there was no reasonable view of the evidence that would support a finding that the defendant acted recklessly when he shot the decedent (see CPL 300.50[1];  People v. Wright, 54 A.D.3d 695, 696-697, 863 N.Y.S.2d 253).

 The County Court also properly denied the defendant's request for a justification charge because no reasonable view of the evidence supported such a charge (see People v. Padgett, 60 N.Y.2d 142, 144-145, 468 N.Y.S.2d 854, 456 N.E.2d 795;  People v. DeLeon, 46 A.D.3d 569, 570, 845 N.Y.S.2d 917).   According to the defendant's testimony concerning the events, he shot the decedent through a partly-closed door when the decedent was unarmed and stomping on his leg, which was caught between the door and the door jamb.   The defendant could not have reasonably believed that the decedent was using, or was about to use, deadly physical force on him at the time of the shooting (see Penal Law § 35.15[2];  People v. Goetz, 68 N.Y.2d 96, 105-106, 506 N.Y.S.2d 18, 497 N.E.2d 41;  People v. Bonilla, 57 A.D.3d 400, 870 N.Y.S.2d 18;  People v. Simon, 56 A.D.3d 804, 868 N.Y.S.2d 151).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 643-644, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's motions for a mistrial due to alleged Rosario (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) and Brady (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) violations were properly denied (see CPL 240.45[1][a];  240.75;  People v. Ennis, 11 N.Y.3d 403, 414, 872 N.Y.S.2d 364, 900 N.E.2d 915, cert. denied --- U.S. ----, 129 S.Ct. 2383, 173 L.Ed.2d 1301;  People v. Ahmed, 244 A.D.2d 415, 664 N.Y.S.2d 317).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85-86, 455 N.Y.S.2d 675).