Opinion
February 2, 1990
Appeal from the Monroe County Court, Celli, J.
Present — Dillon, P.J., Callahan, Pine, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted of murder in the second degree (felony murder) arising out of the robbery and stabbing of the victim, who died more than two hours after the stabbing. We agree with defendant that the court erred by instructing the jury in its charge on felony murder that defendant must have formed the intent to rob the victim before death occurred rather than before or during the stabbing. That portion of the court's charge, taken from New York Criminal Jury Instructions (2 CJI[NY] PL 125.25 [3], at 329), does not accurately state the law because it permits the jury to convict defendant of felony murder even if the intent to rob the victim was formed between the stabbing and the death. However, reversal is not required. The court otherwise accurately instructed the jury, immediately following the erroneous language and on at least five other occasions, that the People had to prove that the act that caused the victim's death was committed during the course of, or in furtherance of, the robbery (see, People v Joyner, 26 N.Y.2d 106; People v Dering, 140 A.D.2d 538, lv denied 72 N.Y.2d 956). Thus, the charge as a whole was correct (see, People v Canty, 60 N.Y.2d 830).
We have examined defendant's remaining arguments and find none with merit.