| People v Galeano |
| 2013 NY Slip Op 07802 [111 AD3d 537] |
| November 21, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Luis Galeano, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered May26, 2011, as amended June 16, 2011, convicting defendant, after a jury trial, of murder inthe second degree and two counts of robbery in the first degree, and sentencing him, as asecond felony offender, to an aggregate term of 25 years to life, unanimously affirmed.
Defendant did not preserve his claim that the court should have instructed the jury onthe affirmative defense to felony murder (Penal Law § 125.25 [3]), and we declineto review it in the interest of justice. The record does not establish that the court"expressly decided" the issue "in re[s]ponse to a protest by a party" (CPL 470.05 [2];see People v Turriago, 90 NY2d 77, 83-84 [1997]; People v Colon, 46 AD3d260, 263 [1st Dept 2007]). Instead, the record merely reflects that defense counselwas initially noncommittal about whether he wanted this charge, and that subsequentlythere was an informal, unrecorded colloquy at which the court expressed its opinion thatthe affirmative defense was inapplicable. Defendant did nothing to register anydisagreement with that view.
As an alternate holding, we find that there was no reasonable view of the evidence,viewed in the light most favorable to defendant, to support that defense (see People v Curet, 99 AD3d611 [1st Dept 2012], lv denied 20 NY3d 1010 [2013]). Defendant's defensewas that he did not commit felony murder to begin with, in that he only intended tocommit a [*2]nonforcible larceny. There was no evidencein either the prosecution or defense case to support the elements of the affirmativedefense.
We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J.,Tom, Renwick, Freedman and Clark, JJ.