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The People, etc., respondent, v. Bernard Small, appellant.
Argued-January 4, 2011
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered September 3, 2008, convicting him 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 affirmed.
The Supreme Court properly denied the defendant's request for a justification charge since no reasonable view of the evidence supported such a charge (see Penal Law § 35.15[2][a]; People v. Umali, 10 NY3d 417, 425, cert denied US, 129 S Ct 1595; People v. Petty, 7 NY3d 277, 284; People v. Goetz, 68 N.Y.2d 96, 105-106; People v. Watts, 57 N.Y.2d 299, 301; People v. Ojar, 38 AD3d 684, 685). The defendant shot the victim, who was unarmed, and the evidence indicates that the defendant had no reason to believe that the victim was armed or was about to use deadly physical force against him, or that the defendant could not retreat in complete safety (see People v. Watts, 57 N.Y.2d at 302; People v. Dickerson, 67 AD3d 700, 701; People v. Simon, 56 AD3d 804, 804-805; People v. Krebs, 11 AD3d 713; People v. Snell, 256 A.D.2d 480, 481; People v. Davis, 232 A.D.2d 209; compare People v. Arzu, 7 AD3d 458, 459; People v. Khan, 113 A.D.2d 773, 774, affd 68 N.Y.2d 921).
The defendant's remaining contention regarding his conviction of criminal possession of a weapon in the second degree is without merit (see People v. Pons, 68 N.Y.2d 264, 265; People v. Almodovar, 62 N.Y.2d 126, 130; People v. Khan, 113 A.D.2d at 774; but see People v. Aruz, 253 A.D.2d 592, 595).
FLORIO, J.P., ENG, BELEN and AUSTIN, JJ., concur.
ENTER:
Matthew G. Kiernan
Clerk of the Court
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Docket No: 2008-08431 (Ind.No. 3049/07)
Decided: January 25, 2011
Court: Supreme Court, Appellate Division, Second Department, New York.
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