People v. Andre ( 1992 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered June 28, 1989, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the court erred in refusing his request to charge the affirmative defense to felony murder (see, Penal Law § 125.25 [3]). We disagree. There was no reasonable view of the evidence which established the elements of the defense (see, Penal Law § 125.25 [3]; People v Fells, 121 AD2d 394; People v Alston, 104 AD2d 653, 654). Moreover, the defendant admitted on cross-examination that he knew that another, as then unapprehended participant, had been armed. Hence, he does not satisfy the statutory criteria set forth in Penal Law § 125.25 (3) (c).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80, 83).

We have examined the defendant’s remaining contentions and find them to be without merit (see also, People v Burch, 188 AD2d 479 [decided herewith]). Bracken, J. P., Lawrence, Eiber and Miller, JJ., concur.