People v. Etienne ( 1998 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered September 19, 1996, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the court did not err in refusing to charge the jury on the lesser included offense of manslaughter in the second degree. A defendant is entitled to a charge on a lesser included offense if (1) it is theoretically impossible to commit the greater crime, without, by the same conduct, committing the lesser crime, and (2) a reasonable view of the evidence would support a finding that the defendant committed the lesser offense and not the greater (see, People v Glover, 57 NY2d 61, 63). Although the first prong of the test was satisfied, no reasonable view of the evidence at trial would support a finding that the defendant acted recklessly in shooting the victim repeatedly at close range.

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). Rosenblatt, J. P., Miller, Thompson and Santucci, JJ., concur.