Opinion
December 21, 1987
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgment is affirmed.
The court properly refused the defendant's request to charge the jury regarding the defense of extreme emotional disturbance, as viewing the evidence in the light most favorable to the defendant, there was insufficient evidence from which a jury could find by a preponderance of the evidence that the elements of this affirmative defense were satisfied (see, People v Moye, 66 N.Y.2d 887; People v Walker, 64 N.Y.2d 741, rearg dismissed 65 N.Y.2d 924; People v Knights, 109 A.D.2d 910).
We further note that the court's refusal to charge manslaughter in the second degree (reckless manslaughter) as a lesser included offense of murder in the second degree was entirely proper as no reasonable view of the evidence would support a finding that the defendant acted recklessly rather than intentionally (see, People v Green, 56 N.Y.2d 427, rearg denied 57 N.Y.2d 775; People v Bell, 111 A.D.2d 926, lv denied 66 N.Y.2d 917). In any event, any error in failing to charge manslaughter in the second degree was harmless as the jury rejected the intoxication defense and additionally rejected the lesser included charge of manslaughter in the first degree and convicted the defendant of the higher crime of murder in the second degree (see, People v Wilder, 132 A.D.2d 683).
Lastly, the sentence imposed was neither harsh nor excessive. Mangano, J.P., Lawrence, Weinstein and Rubin, JJ., concur.