The People of the State of New York, Respondent, v. Michael Jones, Appellant

The People of the State of New York, Respondent, v Michael Jones, Appellant. [726 NYS2d 853] [MAJORITY] —Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered February 11, 1999, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal use of a firearm in the first degree, and sentencing him to consecutive terms of 12V2 to 25 years and 5 years, respectively, unanimously affirmed. The court properly refused to submit to the jury the lesser included offense of manslaughter in the second degree, since there was no reasonable view of the evidence, viewed most favorably to defendant, that defendant was guilty of the lesser offense but not the greater (see, People v Green, 56 NY2d 427, 434). Defendant’s testimony did not support a theory of reckless homicide. The court’s participation in the examination of defendant was not adversarial and was not so excessive as to deprive defendant of a fair trial, given the court’s instructions to the jury (see, People v Gonzalez, 228 AD2d 340, lv denied 88 NY2d 1021). We perceive no basis for reduction of sentence. Concur— Rosenberger, J. P., Andrias, Lerner, Saxe and Friedman, JJ.