Opinion
KA 01-00578
October 2, 2003.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered December 15, 2000, convicting defendant after a jury trial of, inter alia, murder in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law 125.25) and criminal possession of a weapon in the second degree (265.03). We reject the contention of defendant that Supreme Court erred in refusing to use his proposed jury charge on the mistake of fact defense. The court's charge on that defense adequately conveyed the appropriate standard to the jury ( see People v. Adams, 69 N.Y.2d 805, 806). The verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495), and the sentence is neither unduly harsh nor severe.