Opinion
Argued October 12, 2006.
Decided November 16, 2006.
APPEAL, by permission of the Chief Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered December 22, 2005. The Appellate Division affirmed a judgment of the Monroe County Court (Frank P. Geraci, Jr., J), which had convicted defendant, upon a jury verdict, of manslaughter in the second degree.
People v. Bolling, 24 AD3d 1195, affirmed.
Edward J. Nowak, Public Defender, Rochester ( Eric M. Dolan of counsel), for appellant.
Michael C. Green, District Attorney, Rochester ( Kelly C. Wolford of counsel), for respondent.
Before: Chief Judge KAYEand Judges CIPARICK, ROSENBLATT, GRAFFEO, READ and SMITH.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed. Defendant appeals his conviction for manslaughter in the second degree, arguing that the trial court gave an incorrect charge on justification ( see People v. McManus, 67 NY2d 541). Although the defense of justification was submitted to the jury, without objection from the People, no reasonable view of the evidence supported the defense. A witness testified that the victim had threatened defendant and a codefendant with a gun, and had fired it into the air, but the same witness testified that the victim was then disarmed, and that he was lying on the ground when the shots that killed him were fired.
No justification charge at all was necessary, and any error in the charge that was given was harmless ( People v. Jones, 3 NY3d 491, 496-497). We need not and do not consider whether the charge was correct.
Judge PIGOTT taking no part.
Order affirmed in a memorandum.