I respectfully dissent. With respect to the counts of second-degree manslaughter and assault, the court’s refusal to charge the choice-of-evils defense pursuant to Penal Law § 35.05 (2) was correct. With respect to the lesser crimes of which defendant was convicted, operating a motor vehicle while intoxicated and offenses that have as an element the operation of a motor vehicle while intoxicated, any error in refusing to give the charge was inconsequential.
Two starkly different versions of what happened on Mt. Eden Avenue in the Bronx on the afternoon of August 1, 2005 were *246presented to the jury. The People’s evidence was that defendant, while intoxicated, got into the truck to play a “trick” on the operator and recklessly caused the truck to careen down a steep slope on Mt. Eden Avenue, hitting and killing a young boy and seriously injuring two adults. The crux of the defense case, consisting principally of defendant’s testimony, was that defendant heroically jumped into the already moving truck in an effort to stop it from moving down the hill and the victims were struck by the truck after all his attempts to stop the truck failed. As the prosecutor argued on summation without contradiction from the defense, “there is one central issue in this case. Everything else flows from the answer to that central issue and [sic] as to the guilt of the defendant, and that central issue is how and why the defendant got behind the wheel of that truck.”
In opposing defendant’s request for an instruction on the choice-of-evils defense, the prosecutor correctly argued, “What the defendant did, according to the defense theory, was not a crime.” Stressing that defendant’s position was that “the truck was already moving” and “he was getting into it to try to prevent it from moving,” the prosecutor went on to point out that “[i]f that is true, if the jury believes that, then it is not a reckless act, and the jury would have to find defendant not guilty. There is no need for a justification charge. That would confuse the issues even more and does not apply in this case.” After taking a short recess, the judge denied the request, stating that he did “not see how a justification charge would be warranted under these particular facts and circumstances.” The judge added that he was denying the request “based on [his] reading of the statute, and appropriate case law.”1
To convict defendant of the second-degree manslaughter count and the second-degree assault counts, the People were required to prove that his conduct recklessly caused death and serious physical injury (Penal Law § 125.15 [1]; § 120.05 [4]). That is, the People were required to prove, inter alia, that defendant’s conduct created a “substantial and unjustifiable risk” (Penal Law § 15.05 [3]) of death and serious physical injury, and that he was “aware of and consciously disregarded]” each risk. But if defendant jumped into an already moving truck, it would be irrational to think that his conduct created a substantial and unjustifiable risk of either death or serious physical injury, let alone that he was aware of and consciously disregarded either *247risk. If the jury accepted defendant’s version, the only rational conclusion it could come to would be that defendant’s conduct reduced rather than created these risks. Manifestly, the jury could have convicted defendant for committing conduct that created these risks only if it found that the People had proven beyond a reasonable doubt that he entered the parked truck and caused it to start moving.
That defendant was not entitled to an instruction on the choice-of-evils defense also can be seen by supposing that the court had expressly instructed the jury that defendant could be convicted of the second-degree manslaughter and assault counts only if the People proved beyond a reasonable doubt that he got into the truck and caused it to start moving. Had the jury been given such an instruction (or its equivalent, an instruction that the People were required to disprove beyond a reasonable doubt defendant’s testimony that he jumped into an already moving truck), the pointless character of an instruction under Penal Law § 35.05 (2) would be all the more evident. To be sure, neither instruction was given—defendant never asked for either— but such an instruction was implicit in the court’s correct instructions on both the elements of the second-degree manslaughter and assault offenses and the People’s burden of proving every element beyond a reasonable doubt.
Although I agree with the majority that defendant need not have admitted that his conduct recklessly caused death or serious physical injury, there had to be some reasonable view of the evidence supporting the choice-of-evils defense (People v Cox, 92 NY2d 1002, 1004 [1998]; People v Hubrecht, 2 AD3d 289, 290 [2003], lv denied 2 NY3d 741 [2004]). Accordingly, there had to be a reasonable view of the evidence that, inter alia, defendant recklessly caused death or serious physical injury even though he jumped into an already moving truck. Indeed, Penal Law § 35.05 presupposes, as its opening sentence expressly provides, “conduct which would otherwise constitute an offense” (emphasis added). Similarly, Penal Law § 35.10 specifies when “[t]he use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal” (emphasis added). When the defendant’s commission of an offense is not supported by a reasonable view of the evidence the defense relies upon, a justification charge is unwarranted, pointless and potentially confusing. Here, the notion that defendant jumped into an already moving truck and nonetheless created somehow a grave risk of death or serious physical injury is *248simply absurd. Not surprisingly, neither defendant nor the majority outlines or suggests a line of reasoning that would support that notion.
By contrast, if the jury concluded that defendant jumped, or may have jumped, into an already moving truck, the jury reasonably could have found defendant guilty of both counts of operating a motor vehicle while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]). However, if the jury concluded that defendant jumped, or may have jumped, into an already moving truck, whether the jury also reasonably could have found that defendant was guilty of the other lesser crimes with which he was charged is another matter entirely. These crimes, vehicular manslaughter in the second degree (Penal Law § 125.12 [1]) and vehicular assault in the second degree (Penal Law § 120.03 [1]), require proof not only that defendant operated the truck while intoxicated, but that “as a result of such intoxication” (Penal Law § 125.12 [1]; § 120.03 [1]), he “operate[d] such motor vehicle . . . in a manner that cause[d]” (id.) death (vehicular manslaughter) or serious physical injury (vehicular assault). Suffice it to say, it is far from obvious how either result was caused not by whoever or whatever caused the truck to careen down the hill but by the manner in which defendant operated the truck. (Nor, for that matter, is it at all obvious how any such culpable operation of the truck was the “result” of defendant’s intoxication.) The point, however, need not be debated. Even assuming that on defendant’s version of the facts a reasonable theory of causality can be articulated, the court’s refusal to instruct the jury on the choice-of-evils defense as to these lesser crimes was inconsequential. After all, the jury’s verdict establishes that it concluded that the People had proven beyond a reasonable doubt that defendant caused the truck to begin moving, i.e., that defendant had not jumped into an already moving truck in an attempt to stop it. We know the jury so concluded because it was correctly instructed on the elements of the counts charging reckless conduct—second-degree manslaughter (Penal Law § 125.15 [1]) and second-degree assault (Penal Law § 120.05 [4])—and the jury could not rationally have convicted defendant of these crimes if it entertained a reasonable doubt about whether he got into an already moving truck.
Moreover, our cases make clear that in light of the particular facts of a case, a jury’s verdict can render irrelevant the issue of whether the jury should have been instructed on a defense (see e.g. People v Degondea, 269 AD2d 243, 245-246 [1st Dept 2000], *249lv denied 95 NY2d 834 [2000] [“as the jury made findings which precluded the defense of justification, the court’s refusal to charge the ‘defense of a third person’ prong of the justification defense did not prejudice him”]; cf. People v Ruiz, 223 AD2d 418, 419 [1st Dept 1996], lv denied 88 NY2d 853 [1996] [failure to charge lesser included offense of seventh-degree criminal possession of a controlled substance harmless error as “(i)t would be irrational to find that the jury, in considering the possession count, would have credited defendant’s claim that he had purchased the . . . glassines for his personal use” and “(t)he verdict itself implies that the error did not affect the result”]). Here, too, for the reasons stated above, the jury’s verdict makes clear that defendant was not prejudiced by the court’s refusal to instruct the jury on the choice-of-evils defense with respect to the lesser crimes.2
Returning to the convictions for second-degree manslaughter and assault, if an instruction under Penal Law § 35.05 (2) nonetheless should have been given, we should affirm just the same. First, as with the lesser crimes, the verdict makes clear that the jury found that the People had proven beyond a reasonable doubt that defendant caused the truck to start moving. Second, the evidence presented on the People’s case proving that defendant entered the parked truck and caused it to start moving was overwhelming, and it included damning admissions defendant made immediately after the accident to a man, Carlos Montilla, who testified that he had played dominos with defendant and had known him for some 10 years. Specifically, after asking Montilla how many people he had killed, defendant said that he had been “joking around with the truck,” that he “was making a joke and look what I’ve done.” Moreover, defendant’s claim that he jumped into the truck only after it started moving was preposterous, particularly because the evidence that defendant was intoxicated also was overwhelming and unrefnted.3 To accept defendant’s story, the jury would have had to believe that *250the truck inexplicably began moving of its own accord and that, despite his intoxication, defendant had the dexterity to climb the high step to the passenger side of the truck as it moved down the hill, pull up the door latch, open the door by pulling it toward his body while balancing on the step of the moving truck, and then clamber over the gear shift after managing to enter. In addition, the jury also would have had to credit defendant’s claim that there was nothing he could do to stop or steer the truck, despite expert testimony to the contrary elicited by the People.4 Putting aside all these incredible aspects of his testimony, defendant failed to give the jury any explanation for why he would have jumped into the truck in the first place. To the contrary, defendant testified that before he got into the cab of the moving truck he could not see inside the cab. As for the damning testimony from Carlos Montilla, defendant sought to neutralize it only with the confounding claim that he did not know and had never seen him before. Defendant offered nothing by way of an explanation for Montilla’s willingness to falsely accuse him. In short, if it was error not to charge the jury under Penal Law § 35.05 (2) as to the second-degree manslaughter and assault convictions, any error was harmless (see People v Petty, 7 NY3d 277, 285-286 [2006] [erroneous omission in justification charge harmless error]). For these same reasons, any error in not charging the jury on the choice-of-evils defense as to the lesser charges also was harmless.
Finally, defendant’s challenges to the prosecutor’s summation are meritless and warrant no discussion; also meritless is his claim that the concurrent sentences (the longest of which are an indeterminate sentence of 5 to 15 years on the second-degree manslaughter count and determinate terms of six years on each of the second-degree assault counts) are excessive.
DeGrasse and Freedman, JJ., concur with Tom, J.P; Sweeny and McGuire, JJ., dissent in a separate opinion by McGuire, J.
Judgment, Supreme Court, Bronx County, rendered June 30, 2008, reversed, on the law, and the matter remanded for a new trial.
. Unfortunately, the majority nonetheless refers to the “unexplained” omission of an instruction on the choice-of-evils defense.
. The majority misses the point when it stresses that “[i]t is for the trier of fact, not this Court, to decide which of the ‘[t]wo starkly different versions of what happened’ is the more credible.” The point, of course, is that the jury’s verdict makes clear which of these two versions it credited.
. Contrary to the majority, defendant did not deny either being intoxicated or having consumed alcohol. Neither subject was broached during direct or cross-examination. In the course of testifying that he never gave his consent to having his blood drawn, however, defendant advanced the remarkable claim that at the hospital one of the police officers, not a nurse or doctor, drew his blood.
. Although the majority notes the accident investigator’s testimony that “the brake fluid reservoir was only two thirds full,” it does not mention the witness’ testimony that although the fluid “was a little low,” “[t]here was sufficient pressure while the vehicle was running to tell me that there was no problem with the brakes at that particular point.” Nor does the majority mention the same witness’ testimony that even with the ignition off, “the foot brake would work. It would be a little harder to push, but it would work.”