Opinion
December 15, 1978
Appeal from the Monroe County Court.
Present — Cardamone, J.P., Dillon, Hancock, Jr., Schnepp and Witmer, JJ.
Judgment unanimously affirmed. Memorandum: Although we agree that the trial court erred in its charge on the issue of intent (see People v. O'Neill, 59 A.D.2d 540, 542) and that subsequent to its initial proper charge on the defense of justification (Penal Law, § 35.15, subd 2, par [a]) the court's further statements on that issue were misleading, neither of those points was preserved for review (People v. Fonseca, 36 N.Y.2d 133; CPL 470.05). Additionally, while the court's determination to charge a lesser degree of assault was not made until after defendant's summation (see People v. Graham, 57 A.D.2d 478, 481, affd 44 N.Y.2d 768), the error thus committed was harmless beyond a reasonable doubt (People v. Crimmins, 36 N.Y.2d 230). The theory of the defense was justification and it may not be said, on the facts of this case, that the defendant was denied his right to an effective summation (People v. Vicaretti, 54 A.D.2d 236, 250; see, also, People v. Chapman, 60 A.D.2d 584). In view of the overwhelming proof of defendant's guilt, we are not moved to reverse in the interests of justice (see People v Jones, 32 A.D.2d 1069, 1070, affd 27 N.Y.2d 501).