| People v Bonilla |
| 2008 NY Slip Op 10189 [57 AD3d 400] |
| December 30, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v ReneBonilla, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Rither Alabre of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered June 14, 2007,as amended October 29, 2007, convicting defendant, after a jury trial, of murder in the seconddegree and attempted murder in the second degree, and sentencing him to consecutive terms of25 years to life and 25 years, respectively, unanimously affirmed.
The court properly determined that no reasonable view of the evidence, viewed in a lightmost favorable to defendant, supported the submission of a charge on justification (seePeople v Cox, 92 NY2d 1002 [1998]; People v Reynoso, 73 NY2d 816, 818 [1988]).Defendant was convicted of attempting to kill one victim, and also killing a 10-year-oldbystander. In his own testimony, defendant, who described prior altercations with the survivingvictim and claimed that this person had threatened him and his girlfriend, admitted that hecarefully concealed a pistol in his clothing and went to a park to confront the victim. Althoughdefendant maintained that he only wanted to talk to the victim and only fired his weapon whenthe victim moved his hand toward his waist, he admitted firing at least five shots. The evidencealso established that at one point defendant straddled the victim while he lay helpless on theground and continued to fire at him. Even under defendant's account of the incident, his claimedbelief that the victim's hand motion signified imminent use of deadly force was not objectivelyreasonable (see People v Goetz, 68 NY2d 96, 105-106 [1986]; People vHenriquez, 233 AD2d 268 [1996], lv denied 89 NY2d 942 [1997]). Furthermore, theevidence demonstrated that defendant could have retreated even after the victim made the allegedhand motion, as well as that it was unreasonable for defendant to fire numerous shots. It was alsoan unreasonable use of force, under the circumstances presented, to fire shots in close proximityto a crowd of people, which was the circumstance that caused the death of the child.
The court also properly refused to submit the affirmative defense of extreme emotionaldisturbance (Penal Law § 125.25 [1] [a]), since, again viewing the evidence in a light mostfavorable to defendant, there was no reasonable view of the evidence to support that defense.Even accepting defendant's account of the incident and his claim of being in great fear of thesurviving victim, the evidence failed to establish that defendant suffered from any mentalinfirmity at the time of the shooting, and it also showed that he acted with a high degree ofself-[*2]control that was inconsistent with the extreme emotionaldisturbance defense (see People v Roche, 98 NY2d 70 [2002]; People v White,79 NY2d 900 [1992]).
Defendant was charged with the murder of the child bystander under a transferred intenttheory. The court properly refused to submit manslaughter in the first degree as a lesser includedoffense, since there was no reasonable view of the evidence, viewed, once again, most favorablyto defendant, that he merely intended to inflict serious physical injury on the surviving victim butnot death. Defendant's course of conduct, even as he described it in his testimony, establishedthat he kept firing at the victim for the purpose of killing him (see People v Echevarria, 17 AD3d204 [2005], affd 6 NY3d 89 [2005]).
We also conclude that any error in failing to grant defendant's charge requests was harmless.Regardless of whether defendant's testimony, if credited, spelled out a justification defense, anextreme emotional disturbance defense, or a lack of homicidal intent, there is no reasonablepossibility that the jury, even if instructed as defendant wished, would have credited his versionof the incident in the face of overwhelming prosecution evidence that the incident did not occuras defendant described it, but was in fact a premeditated ambush.
The People met their burden of establishing the legality of the consecutive sentences imposed(see Penal Law § 70.25 [2]; People v Rosas, 8 NY3d 493, 496 [2007]). Although defendant'sintent with respect to each act was to kill the surviving victim, he committed separate and distinctacts when he fired his first shot, which killed the child, and then fired several more shots,seriously injuring the intended victim (see People v Azaz, 10 NY3d 873 [2008]). Nothing in the court'sinstructions on transferred intent required concurrent sentences (see People v Alvarez, 44 AD3d562, 565 [2007], lv denied 9 NY3d 1030 [2008]).
Defendant's claim that the procedure by which the court determined that he was eligible forconsecutive sentences violated the principles of Apprendi v New Jersey (530 US 466[2000]) is unpreserved and without merit (see People v Lloyd, 23 AD3d 296, 298 [2005], lv denied 6NY3d 755 [2005]). Concur—Lippman, P.J., Gonzalez, Nardelli, Buckley and Acosta, JJ.