Opinion
2002-02436
Submitted September 25, 2003.
October 27, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered August 13, 2001, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Patricia Theodorou of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., HOWARD MILLER, THOMAS A. ADAMS, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's challenge to the trial court's justification charge is unpreserved for appellate review ( see CPL 470.05; People v. Richardson, 294 A.D.2d 379, 380; People v. Abreu, 287 A.D.2d 644, 645). In any event, the trial court properly instructed the jury to consider subjective factors in determining whether the defendant believed that the use of deadly force was necessary to avert the imminent use of deadly force and to determine whether, under the circumstances, the defendant's belief was reasonable ( see People v. Wesley, 76 N.Y.2d 555, 559; People v. Goetz, 68 N.Y.2d 96, 106; People v. Santos, 280 A.D.2d 561, 562).
ALTMAN, J.P., H. MILLER, ADAMS and TOWNES, JJ., concur.