| People v Small |
| 2011 NY Slip Op 00541 [80 AD3d 786] |
| January 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Bernard Small, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'HaraGillespie, and Allison Ageyeva of counsel), for respondent.
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 criminalpossession 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 noreasonable view of the evidence supported such a charge (see Penal Law § 35.15[2] [a]; People v Umali, 10 NY3d417, 425 [2008], cert denied 556 US —, 129 S Ct 1595 [2009]; People v Petty, 7 NY3d 277, 284[2006]; People v Goetz, 68 NY2d 96, 105-106 [1986]; People v Watts, 57 NY2d299, 301 [1982]; People v Ojar, 38AD3d 684, 685 [2007]). The defendant shot the victim, who was unarmed, and the evidenceindicates that the defendant had no reason to believe that the victim was armed or was about touse deadly physical force against him, or that the defendant could not retreat in complete safety(see People v Watts, 57 NY2d at 302; People v Dickerson, 67 AD3d 700, 701 [2009]; People v Simon, 56 AD3d 804,804-805 [2008]; People v Krebs, 11AD3d 713 [2004]; People v Snell, 256 AD2d 480, 481 [1998]; People vDavis, 232 AD2d 209 [1996]; compare People v Arzu, 7 AD3d 458, 459 [2004]; People vKhan, 113 AD2d 773, 774 [1985], affd 68 NY2d 921 [1986]).
The defendant's remaining contention regarding his conviction of criminal possession of aweapon in the second degree is without merit (see People v Pons, 68 NY2d 264, 265[1986]; People v Almodovar, 62 NY2d 126, 130 [1984]; People v Khan, 113AD2d at 774; but see People v Aruz, 253 AD2d 592, 595 [1998]). Florio, J.P., Eng,Belen and Austin, JJ., concur.