PEOPLE v. COLON

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

The PEOPLE of the State of New York, Respondent, v. Carlos COLON, Defendant-Appellant.

Decided: January 23, 1997

Before MURPHY, P.J., and ROSENBERGER, ELLERIN and WALLACH, JJ. Marc Frazier Scholl, for Respondent. Tigran Eldred, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Juanita Bing Newton, J.), rendered March 2, 1994, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 17 years to life, unanimously affirmed.

 The court properly declined to charge the justification defense, as it was not supported by any reasonable view of the evidence, which included testimony that the victim had left the scene of the initial confrontation, and that although defendant could have retreated in complete safety, he nevertheless pursued the unarmed victim with the intention of shooting him (see, People v. Johnson, 125 A.D.2d 493, 509 N.Y.S.2d 410, lv. denied 69 N.Y.2d 882, 515 N.Y.S.2d 1030, 507 N.E.2d 1100).

 The trial court properly precluded proposed hearsay evidence because the reliability of such evidence was in question and the proposed evidence was not vital to the defense (see, Crane v. Kentucky, 476 U.S. 683, 689-690, 106 S.Ct. 2142, 2146-2147, 90 L.Ed.2d 636).

 Defendant was not prejudiced by a comment made during the People's summation suggesting choice of defense, as the trial court sustained defendant's objection and struck the comment.   In all other respects, the comments complained of constituted fair comment on the evidence (People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885).

In light of defendant's request, granted by the trial court, for a preliminary instruction regarding a possible justification defense, and the ensuing developments at trial, the trial court properly instructed the jury in its final charge that self-defense was not an issue in the case.

MEMORANDUM DECISION.