People v. Rose , 617 N.Y.S.2d 301 ( 1994 )

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered July 13, 1992, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 8V3 to 25 years, unanimously affirmed.

The People’s evidence overwhelmingly established that the defendant, who had a secreted gun, and a companion walked up to the victim and his companions, and with no provocation, started a fight with the victim. When the victim, a college student, tried to calm defendant’s companion down, defendant pointed the gun at the victim’s head from only a short distance away and fired a shot into the victim’s eye. There is not a scintilla of evidence supporting defendant’s claim that he might have acted recklessly rather than intentionally, and thus the trial court properly denied the application to submit manslaughter in the second degree as a lesser included offense of intentional murder (CPL 300.50; see, People v Scarborough, 49 NY2d 364, 369-370).

Since the potential juror who appears to have recognized the defendant was discharged, defendant’s challenge to the sidebar conference out of his presence is meritless (People v Rodriguez, 203 AD2d 92).

We have reviewed defendant’s remaining contentions and find they do not warrant a new trial. Concur—Wallach, J. P., Kupferman, Ross, Nardelli and Williams, JJ.