People v Polanco

People v Polanco 2020 NY Slip Op 07293 Decided on December 03, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 03, 2020
Before: Renwick, J.P., Manzanet-Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Ind No. 871/16 871/16 Appeal No. 12526 Case No. 2019-1845

[*1]The People of the State of New York, Respondent,

v

David Polanco, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.

Judgment, Supreme Court, New York County (Ann E. Scherzer, J.), rendered August 15, 2018, convicting defendant, after a jury trial, of assault in the first degree, and two counts of criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentences to concurrent terms of 6 years, 3 ½ years and 3 ½ years, respectively, and otherwise affirmed.

The court properly denied defendant's request for a justification charge. Viewing the evidence, including defendant's testimony and a surveillance videotape of the incident, in the [*2]light most favorable to defendant, we find no reasonable view of the evidence to support such a charge. There was no such view of the evidence that defendant had an objectively reasonable belief that the victim was about to use deadly physical force against defendant or his mother, and that it was necessary for defendant to shoot the victim (see Penal Law § 35.15[1], [2][a]; People v Cox , 92 NY2d 1002, 1004 [1998]; People v Goetz , 68 NY2d 96, 114-15 [1986]).

We find the sentence excessive to the extent indicated.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 3, 2020