Viewing the evidence at trial in the light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), defendant's guilt of manslaughter in the first degree was proven beyond a reasonable doubt. The evidence leads naturally and reasonably to the conclusion that defendant shot at the victim, who died at the scene, of the resulting wounds. Contrary to defendant's argument on appeal, it is not equally reasonable to conclude that defendant had taken the "guilty gun" from another man observed leaving the building a few steps in front of defendant, or from some other person, only to discard it and run from police encountered just outside the building. Rather, the evidence is inconsistent with innocence and excludes to a moral certainty any other reasonable hypothesis but defendant's guilt (People v Francis, 79 N.Y.2d 925, 926).
As the charge of murder in the second degree and the lesser included charge of manslaughter in the first degree were placed before the jury, whether defendant's intent was to cause serious physical injury or death was a matter for the jury's determination (People v Butler, 57 N.Y.2d 664, revg on dissent of Sandler, J., 86 A.D.2d 811, 814-815). Here, where a semi-automatic weapon was used, where only 2 of 4 shots actually hit the victim, and where the victim was hit in the torso at diverse angles, the jury's determination that the evidence supported a conviction for manslaughter in the first degree, rather than for murder in the second degree, is reasonable (supra).
Concur — Milonas, J.P., Rosenberger, Ross and Asch, JJ.