People v. Santos

Feb 13, 2001
Versions:280 A.D.2d 561
720 N.Y.S.2d 384
2001 N.Y. App. Div. LEXIS 1765

—Appeal by the *562defendant from a judgment of the Supreme Court, Kings County (Barros, J.), rendered February 10, 1998, convicting him of manslaughter in the first degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the trial court’s justification charge was improper because the objective portion of the charge failed to properly instruct the jurors. This claim is unpreserved for appellate review, as the defendant failed to object to the charge as given or to request a supplemental charge (see, People v Gurganious, 214 AD2d 681; People v Noor, 177 AD2d 517). In any event, the contention is without merit. The trial court properly instructed the jury that it could find that the defendant was justified if it found that he reasonably believed that the victim was using or was about to use deadly physical force against him (see, Penal Law § 35.15 [2] [a]) and if so, to then consider whether the average person would have had the same belief under the same circumstances (see, People v Bernard, 222 AD2d 599). Krausman, J. P., S. Miller, Luciano and Feuerstein, JJ., concur.