Opinion
May 15, 1989
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed.
The defendant's claim that it was error for the trial court to charge the jury on the offense of manslaughter in the second degree as a lesser included offense is not preserved for appellate review. Not only did the defendant fail to timely object to the charge, but defense counsel actually requested the court to instruct the jury with respect to the lesser included offense of manslaughter in the second degree (see, People v Ford, 62 N.Y.2d 275, 279; People v Kinitsky, 119 A.D.2d 159, 161).
In any event, a reasonable interpretation of the evidence could lead a jury to the conclusion that the defendant "recklessly" killed the victim (Penal Law § 15.05; § 125.15). Therefore, under the circumstances, the trial court did not err in charging manslaughter in the second degree as a lesser included offense of murder in the second degree (People v Ford, 66 N.Y.2d 428, 439; People v Glover, 57 N.Y.2d 61, 63).
In addition, the defendant did not request that the jury be charged that the use of deadly physical force was justified under Penal Law § 35.15. Therefore, his claim with respect to the absence of such a charge is not preserved for appellate review (see, People v Charleston, 56 N.Y.2d 886).
In any event, a review of the record shows that the defendant was not entitled to a justification charge. Under no reasonable interpretation of the evidence could it be found that the defendant reasonably believed that deadly physical force was about to be used against him or that he had satisfied his duty to retreat, or was under no such duty (People v Watts, 57 N.Y.2d 299, 302; People v Collice, 41 N.Y.2d 906, 907). Kunzeman, J.P., Rubin, Spatt and Balletta, JJ., concur.