PEOPLE v. ENRIQUEZ (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered October 8, 1996, 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 charge on the justification defense was erroneous because it did not explain the subjective nature of “reasonable belief” is raised for the first time on appeal.   Because the defendant neither made an objection or took an exception to the charge and because he requested no supplemental instruction, the claim is unpreserved for appellate review (see, People v. Riley, 200 A.D.2d 692, 608 N.Y.S.2d 860;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).

 In any event, while we agree that the charge did not conform to the requirements set forth by the Court of Appeals in People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 563 N.E.2d 21, and People v. Goetz, 68 N.Y.2d 96, 114-115, 506 N.Y.S.2d 18, 497 N.E.2d 41, the court's error was harmless in light of the overwhelming evidence that the defendant failed to retreat when he knew it was safe to do so and that he used excessive force in defending himself against his victim, firing several shots into the victim as he lay on the ground (see, People v. Rivera, 205 A.D.2d 807, 808, 614 N.Y.S.2d 33;  People v. Major, 116 A.D.2d 594, 595, 497 N.Y.S.2d 454).

The sentence imposed was not excessive (see, People v. Delgado, 80 N.Y.2d 780, 781-782, 587 N.Y.S.2d 271, 599 N.E.2d 675;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.