Opinion
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.
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.
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 A.D.3d 1291, 1291–1292, 804 N.Y.S.2d 164, lv. denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680 ), 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.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, and WINSLOW, JJ., concur.