People v. Swaby

8 A.D.3d 591, 778 N.Y.S.2d 711, 2004 N.Y. App. Div. LEXIS 8682

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Tomei, J.), rendered May 21, 2002, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the trial court’s justification charge was erroneous is unpreserved for appellate review (see CPL 470.05 [2]; People v Harrell, 59 NY2d 620, 622 [1983]; People v Gaskins, 300 AD2d 506 [2002]). In any event, the charge, taken as a whole, properly instructed the jury on the justification defense (see People v Wesley, 76 NY2d 555, 559 [1990]; People v Bernard, 222 AD2d 599 [1995]; People v Thomas, 179 AD2d 793, 794 [1992]; People v Madden, 171 AD2d 558, 559 [1991]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Santucci, J.P., Schmidt, Rivera and Lifson, JJ., concur.