Opinion
1012 KA 14-00582
09-29-2017
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTONIO ORTIZ, JR., DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT:
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), rendered January 22, 2014. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]), defendant contends that County Court erred in failing to charge the jury on the defense of mistake of fact (see § 15.20 [1] [a]). Defendant failed to preserve that contention for our review (see People v Streeter, 21 AD3d 1291, 1291-1292, lv denied 6 NY3d 898), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.
Entered: September 29, 2017
Mark W. Bennett
Clerk of the Court