| People v Guillen |
| 2009 NY Slip Op 06730 [65 AD3d 977] |
| September 29, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Manuel Guillen, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered May 31, 2007,convicting defendant, after a jury trial, of assault in the first degree and criminal possession of aweapon in the second degree, and sentencing him to an aggregate term of 10 years, unanimouslyaffirmed.
Defendant's claim that the evidence was legally insufficient to establish the element ofserious physical injury (Penal Law § 10.00 [10]) is unpreserved and we decline to reviewit in the interest of justice. As an alternative holding, we find the verdict was based on legallysufficient evidence. We also find it was not against the weight of the evidence (see People v Danielson, 9 NY3d342, 348-349 [2007]). The evidence supports the conclusion that the victim's gunshotwound, which caused a pneumothorax, created a substantial risk of death (see e.g. People vThompson, 224 AD2d 646 [1996], lv denied 88 NY2d 970 [1996])
The court properly declined to submit third-degree assault under a theory of criminalnegligence (Penal Law § 120.00 [3]) as a lesser included offense, since there was noreasonable view of the evidence, viewed most favorably to defendant, to support that charge. Theevidence established that the shooting was not only intentional but premeditated. There was notestimony or other evidence to support the alternative scenario posited by defense counsel, underwhich defendant merely pointed his weapon at the victim, who grabbed at the weapon, resultingin its discharge. This incident was recorded on surveillance videotapes, which show that even ifthe victim initially made a grabbing or swatting gesture toward the firearm, it did not dischargeat that point. Instead, defendant stepped back and again aimed the weapon at the victim, whonow put his hands in front of his face in a self-protective gesture that could not have madecontact with defendant or his weapon, and defendant fired. Accordingly, there was nothing butspeculation to support the request for a lesser included offense (see People v Negron, 91NY2d 788, 792 [1998]; compare e.g. People v Fernandez, 64 AD3d 307 [2009]).
The court properly exercised its discretion in precluding defendant from eliciting from hismother, who was called as a defense witness, that after defendant's arrest the victim had aconversation with defendant's mother which included discussion of the victim's music businessand financial situation. Defendant's offer of proof was insufficient to establish any basis for[*2]eliciting this testimony as evidence of the victim's biasagainst defendant (see People v Thomas, 46 NY2d 100, 105-106 [1978], appealdismissed 444 US 891 [1979]). Defendant's claim that the victim was asking defendant'smother for a bribe in return for exculpating her son rested entirely on speculation. Furthermore,the court's ruling did not deprive defendant of a fair trial or affect the outcome of the case.
We perceive no basis for reducing the sentence, or for substituting a youthful offenderadjudication. Concur—Mazzarelli, J.P., Saxe, Moskowitz, Renwick and Richter, JJ.