| People v Curet |
| 2012 NY Slip Op 07184 [99 AD3d 611] |
| October 25, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoseCuret, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Mary Jo L. Blanchard of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered May 6, 2010,convicting defendant, after a jury trial, of murder in the second degree, attempted murder in thesecond degree, burglary in the first degree, attempted robbery in the first degree, and criminalpossession of a weapon in the second degree, and sentencing him, as a second violent felonyoffender, to an aggregate term of 43 years to life, unanimously modified, on the law, to the extentof reducing the periods of postrelease supervision for the attempted murder, burglary, attemptedrobbery and weapon possession convictions from 10 years to five years, and otherwise affirmed.
The court properly declined to charge the affirmative defense to felony murder (Penal Law§ 125.25 [3]) since there was no reasonable view of the evidence, viewed in the light mostfavorable to defendant, to support that defense (see e.g. People v Baity, 178 AD2d 190[1st Dept 1991], lv denied 79 NY2d 943 [1992]). Defendant bases his argument forcharging the affirmative defense on speculative inferences from evidence that tends to negate theaffirmative defense more than it supports it. If anything, the evidence cited by defendant suggeststhat he had reason to believe he was embarking on the kind of robbery that could only be carriedout by means of deadly weapons, and that had the potential for lethal violence.[*2]
As the People concede, defendant's determinate sentencesfor the nonhomicide convictions carried five-year rather than 10-year periods of postreleasesupervision. Concur—Gonzalez, P.J., Moskowitz, Acosta, Freedman and Abdus-Salaam,JJ.