dissent">Kane and Harvey, JJ.,

dissent and vote to affirm in a memorandum by Kane, J. Kane, J. (dissenting). We fail to perceive, under a reasonable view of the evidence, where County Court erred in refusing to charge manslaughter in the second degree as a lesser included offense. For a defendant to be entitled to such a charge there must be " 'some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime’ ” (People v Blim, 63 NY2d 718, 720, quoting People v Scarborough, 49 NY2d 364, 369-370). Here, in order to establish the lesser crime and entitle defendant to the charge he requested, there must have been proof that defendant "recklessly cause[d] the death of another person” (Penal Law § 125.15 [1]). Defendant did not offer proof to support such a theory but, on the contrary, his defense was founded on the proposition that he acted at all times in an effort to protect himself from harm and that his actions were justifiable.

Such a contention, of course, entitled him, as requested, to a charge on the defense of justification, because the defense of justification is always available in the prosecution of any crime involving the use of force whenever there is evidence to support it, and the particular type of conduct by defendant or a particular mens rea does not limit the application of Penal Law article 35 (see, People v Magliato, 68 NY2d 24, 29; People v McManus, 67 NY2d 541, 547; People v Huntley, 59 NY2d 868). However, whether to grant a request to charge a lesser included offense is addressed to the discretion of the trial court after an examination of all the evidence, including that submitted by a defendant (CPL 300.50 [1]; People v Glover, 57 NY2d 61). In other words, once a defendant has charted his course and established his defense, the court must examine the evidence produced by that process and, at the close of the proof, apply the appropriate substantive provisions of the Penal Law to determine whether the charge requested is proper. The evidence presented by defendant in this case demonstrates that such a defense is wholly inconsistent with a claim of reckless conduct, because in the effort to protect himself, defendant contended that his actions were intentional. If the jury had adopted this theory of the defense, defendant would have been acquitted. Moreover, a conviction of manslaughter in the second degree under the facts of this *794case would have been founded upon sheer speculation (see, People v Wedgeworth, 104 AD2d 915) or compromise, because a defendant cannot intentionally cause the death of another human being by a reckless act (see, People v Zimmerman, 46 AD2d 725).

Accordingly, and for the reasons stated, we would affirm the judgment of conviction.

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