Opinion
2001-04944
Submitted June 10, 2003.
June 30, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered May 29, 2001, convicting him of murder in the second degree and assault in the first degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Daniel E. Wenner of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., MYRIAM J. ALTMAN, NANCY E. SMITH, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, by not excepting to the Supreme Court's curative instruction regarding a question he was asked by the prosecution pertaining to his pre-arrest silence, the defendant failed to preserve for appellate review his claim with respect to the curative instruction ( see People v. Basora, 75 N.Y.2d 992; People v. Slack, 131 A.D.2d 610). In any event, given the extremely limited context in which the defendant's pre-arrest silence was raised by the prosecutor, the Supreme Court's curative instruction to the jury and the overwhelming evidence of the defendant's guilt, any error was harmless ( see People v. Crimmins, 36 N.Y.2d 230; People v. Patellis, 305 A.D.2d 429, [2d Dept, May 5, 2003]; People v. Slack, supra).
The defendant also contends that the Supreme Court's jury instruction on justification was improper. However, this claim is unpreserved for appellate review because the defendant did not object to the charge as given or request a supplemental charge ( see People v. Santos, 280 A.D.2d 561; People v. Noor, 177 A.D.2d 517). In any event, the contention is without merit. The Supreme Court properly instructed the jury on both the objective and subjective tests which are employed in the jury's determination as to whether the defendant's actions were justified ( see Penal Law § 35.15[a]; People v. Santo, supra; People v. Gurganious, 214 A.D.2d 681).
The defendant's remaining contentions either are unpreserved for appellate review or without merit.
PRUDENTI, P.J., ALTMAN, SMITH and ADAMS, JJ., concur.