Opinion
1998-03124
Argued April 25, 2003.
May 19, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flaherty, J.), rendered March 19, 1998, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Brian J. Michels of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the trial court failed to provide a complete instruction to the jury on the defense of justification (see Penal Law § 35.20) has not been preserved for appellate review, as the defendant failed to alert the trial court to any error at a point when it could have been corrected (see CPL § 470.05; People v. McCray, 149 A.D.2d 736). In any event, viewed in the light most favorable to the defendant, the evidence does not support the issuance of the burglary justification charge where there was no surprise intrusion by strangers and the threat of burglary by his acquaintances of over 10 years was not such that it required deadly force to terminate the burglary under any reasonable view of the evidence (see People v. Cox, 92 N.Y.2d 1002, 1005; People v. Godfrey, 80 N.Y.2d 860, 862).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
FLORIO, J.P., SCHMIDT, TOWNES and CRANE, JJ., concur.