Opinion
January 31, 1992
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Boomer, J.P., Pine, Balio, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The trial court erred in its charge to the jury on the defense of justification (see, Penal Law § 35.15) by failing properly to instruct the jury "to consider both subjective and objective factors in determining whether [the] defendant's conduct was reasonable" (People v. Wesley, 76 N.Y.2d 555, 559). "Specifically, the jurors were not instructed that they should assess the reasonableness of defendant's beliefs `by judging the situation from the point of view of defendant as though they were actually in his place' (People v. Wesley, supra, at 560)" (People v. Spittler, 168 A.D.2d 919, lv denied 77 N.Y.2d 882; see also, People v. Goetz, 68 N.Y.2d 96, 114-115). However, proof of defendant's guilt was overwhelming, and there is no significant probability that, absent the error, the jury would have acquitted the defendant (see, People v. Crimmins, 36 N.Y.2d 230, 241-242).
There is no merit to defendant's contentions that he was denied the effective assistance of counsel; that the court abused its discretion in denying youthful offender status; that the sentence is harsh and excessive; or that claimed prosecutorial misconduct deprived defendant of a fair trial. Defendant's remaining contention that the court erred in failing to instruct the jury on justification in defense of property (Penal Law § 35.20) was not preserved for our review (see, CPL 470.05). In any event, there was no factual basis in the record to warrant such instruction.