Opinion
May 28, 1993
Appeal from the Erie County Court, D'Amico, J.
Present — Callahan, J.P., Green, Lawton, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: By failing to object to the court's charge, defendant failed to preserve for review her present argument that the court's charge on justification was erroneous (see, CPL 470.05; People v Williams, 176 A.D.2d 1209, lv denied 79 N.Y.2d 833). In any event, the charge adequately apprised the jury of the relevant concepts. We further conclude that the court's charge did not allow the jury to consider a theory not charged in the indictment (cf., People v Grega, 72 N.Y.2d 489). Finally, we conclude that the People presented evidence sufficient to disprove defendant's justification defense beyond a reasonable doubt. The evidence, when viewed in the light most favorable to the People (People v Kennedy, 47 N.Y.2d 196, 203), demonstrated that the victim was unarmed and was fleeing the scene at the time he was stabbed by defendant.