People v. Cummings — 303 A.D.2d 520

Majority

p. 520

The People of the State of New York, Respondent, v Harold Cummings, Appellant.

[756 NYS2d 446]

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered December 20, 2001, convicting him of manslaughter in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the trial court erred in denying his request to charge the jury that the decedent’s work boots could be considered a dangerous instrument is without merit, as no reasonable view of the evidence supported such a finding (see generally People v Snyder, 73 NY2d 900 [1989]; People v Williams, 240 AD2d 441 [1997]; cf. People v Carter, 53 NY2d 113 [1981]; People v Ray, 273 AD2d 611 , 613 [2000]; People v Hansen, 267 AD2d 474 [1999]).

p. 521

The trial court’s instructions regarding the duty to retreat were entirely proper since there was evidence in the record which could rationally support a finding that the defendant could have safely retreated (see People v Jackson, 293 AD2d 488 [2002]; People v Bayron, 151 AD2d 962 [1989]; People v Barcena, 131 AD2d 688 , 689 [1987]).

The defendant’s remaining contentions are without merit. Ritter, J.P., Florio, S. Miller and H. Miller, JJ., concur.

Cases cited

People v. Snyder 73 NY2d 900 N.Y. 1989-02-09 p. 520
People v. Carter 53 NY2d 113 N.Y. 1981-06-09 p. 520
People v. Ray 273 AD2d 611 N.Y. App. Div. 2000-06-22 at 613 p. 520
People v. Hansen 267 AD2d 474 N.Y. App. Div. 1999-12-27 p. 520
People v. Barcena 131 AD2d 688 N.Y. App. Div. 1987-06-15 at 689 p. 521