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 on October 25, 2012
Gonzalez, P.J., Moskowitz, Acosta, Freedman, Abdus-Salaam, JJ.
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 the second degree, burglary in the first degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 43 years to life, unanimously modified, on the law, to the extent of reducing the periods of postrelease supervision for the attempted murder, burglary, attempted robbery and weapon possession convictions from 10 years to 5 years, and otherwise affirmed.
The court properly declined to charge the affirmative defense to felony murder (Penal Law § 125.25) since there was no reasonable view of the evidence, viewed in the light most favorable to defendant, to support that defense (see e.g. People v Baity, 178 AD2d 190 [1st Dept 1991], lv denied 79 NY2d 943 ). Defendant bases his argument for charging the affirmative defense on speculative inferences from evidence that tends to negate the affirmative defense more than it supports it. If anything, the evidence cited by defendant suggests that he had reason to believe he was embarking on the kind of robbery that could only be carried out by means of deadly weapons, and that had the potential for lethal violence.
As the People concede, defendant's determinate sentences for the non-homicide convictions carried five-year rather than ten-year periods of postrelease supervision.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 25, 2012
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