PEOPLE v. MATIAS

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose MATIAS, Defendant-Appellant.

Decided: January 21, 1997

Before SULLIVAN, J.P., and WALLACH, RUBIN, TOM and ANDRIAS, JJ. Desiree Dhir Sheridan, for Respondent. Michael Taglieri, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered June 2, 1994, convicting defendant, after a jury trial, of two counts of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to consecutive terms of 25 years to life, to run concurrently with a term of 5 to 15 years for the weapon possession conviction, unanimously affirmed.

 The trial court properly declined to charge the jury on justification.   The only evidence supporting such an instruction was defendant's vague statement to the police that the “older one” was advancing towards him with a knife while defendant and his friend were armed with guns.   Moreover, there was ample opportunity for defendant to retreat from the apartment (People v. Watts, 57 N.Y.2d 299, 456 N.Y.S.2d 677, 442 N.E.2d 1188).   Although a knife was recovered, the circumstances of its recovery did not support defendant's contentions.

 The court also properly declined to deliver an intoxication charge.   Defendant was not entitled to such a charge based on a witness's testimony that he appeared “drunk” and defendant's post-arrest statement to the police that he had ingested one tab of mescaline and some alcohol and had smoked marijuana prior to the shooting, since there was no evidence tending to corroborate his claim of intoxication such as the quantity or quality of the marijuana and alcohol nor any expert testimony regarding the effect of mescaline or its duration (People v. Gaines, 83 N.Y.2d 925, 615 N.Y.S.2d 309, 638 N.E.2d 954).

We perceive no abuse of the sentencing discretion.

We have considered defendant's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.