| People v Simon |
| 2008 NY Slip Op 09427 [56 AD3d 804] |
| November 25, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Simon, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Argiro Kosmetatos and Itamar J.Yeger of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik,J.), rendered June 10, 2004, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In 2004 the defendant was tried on murder charges arising from a 1987 shooting. Prior to theshooting, the defendant was engaged in a verbal dispute with the victim's brother, who threw astick at him. The defendant then retrieved a gun from his apartment and went back outside,encountering the victim, his brother, and another individual. An argument ensued; the defendantclaimed that the victim stabbed him in the face with a knife, then ran down a nearby tunnel. Thedefendant followed the victim and, from a distance of several feet, fired shots into the back of hishead. The victim died four days later. The defendant fled to Jamaica, where, in 2003, he turnedhimself in to authorities and waived extradition to the United States. At trial, the defendantargued that he shot the victim because he feared for his life.
The trial court properly denied the defendant's request to charge the jury with the defense ofjustification. No reasonable view of the evidence supported the defendant's claim that he was infear for [*2]his life, that the victim or any of the other individualspresent was armed, or that he could not safely retreat rather than engage in the use of deadlyphysical force (see People v Petty, 7 NY3d 277 [2006]; People v Watts, 57 NY2d299, 302 [1982]; People v Wimberly, 19 AD3d 518 [2005]; People v Barrett, 11AD3d 551 [2004]; cf. Matter of Y.K., 87 NY2d 430, 434 [1996]; People v McManus,67 NY2d 541, 549 [1986]; People v Fermin, 36 AD3d 934 [2007]).
The prosecution's failure to disclose, prior to trial, photographs of shell casings which werethe subject of a ballistics expert's trial testimony was not prejudicial to the defendant (seePeople v Wood, 40 AD3d 663 [2007]; People v Chaffee, 30 AD3d 763 [2006]).Accordingly, the court properly denied the defendant's application to preclude the testimony ofthat witness.
The defendant's voluntary surrender to authorities subjected him to the jurisdiction of thecourt (see Ker v Illinois, 119 US 436 [1886]; United States v Suchit, 480 F Supp2d 39, 49 [2007]; cf. Matter of Liebowitz v Harrington, 152 AD2d 737 [1989]).
The court properly limited the cross-examination of a prosecution witness on the underlyingfacts of a prior criminal conviction for which an appeal was pending (see People v Chambers,184 AD2d 716 [1992]; People v Fominas, 111 AD2d 868 [1985]).
The defendant's remaining contentions are without merit. Spolzino, J.P., Angiolillo,Dickerson and Belen, JJ., concur.