PEOPLE v. BENTON (2004)

On appeal from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25[2] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that Supreme Court erred in failing to instruct the jury in accord with commentary concerning the excessive use of deadly physical force (see 1 CJI [N.Y.] 35.15[2][a], at 866).   Defendant concedes that he failed to preserve that contention for our review (see CPL 470.05[2] ).   Assuming, arguendo, that such an instruction may have been appropriate under the facts of this case, we conclude that the failure to include the additional language from the commentary does not warrant reversal as a matter of discretion in the interest of justice where, as here, there is “ ‘strong evidence of guilt before the jury to rebut defendant's justification defense’ ” (People v. Blake, 130 A.D.2d 934, 935, 516 N.Y.S.2d 370, quoting People v. Comfort, 113 A.D.2d 420, 426, 496 N.Y.S.2d 857, lv. denied 67 N.Y.2d 760, 500 N.Y.S.2d 1031, 491 N.E.2d 288;  cf. People v. Carrera, 282 A.D.2d 614, 615-616, 725 N.Y.S.2d 344;  People v. Emmick, 136 A.D.2d 892, 893-894, 525 N.Y.S.2d 77).

We further conclude that the court did not abuse its discretion in its Sandoval ruling (see People v. Walker, 83 N.Y.2d 455, 611 N.Y.S.2d 118, 633 N.E.2d 472;  see generally People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) and that the sentence imposed on the murder conviction is neither unduly harsh nor severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: