The People, etc., respondent, v. Lee Battle, appellant. (2010)

Argued-March 29, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered November 19, 2007, convicting him of murder in the second 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's contention that the People failed to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 NY3d 484, 492;  People v. Gray, 86 N.Y.2d 10, 19) and, in any event, is without merit.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to disprove the justification defense and to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt.   The evidence established that the victim was unarmed when the defendant shot at him three times from behind (see People v. Rishton, 303 A.D.2d 692;  People v. Holmes, 242 A.D.2d 278;  People v. Tineo, 144 A.D.2d 507).   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the jury's rejection of the justification defense was not against the weight of evidence (see People v. Romero, 7 NY3d 633).

Since the defendant failed to object to the trial court's justification charge or to request supplemental jury instructions, the defendant's argument concerning that charge is unpreserved for appellate review (see CPL 470.05 [2];  People v. Fowle, 60 AD3d 691;  People v. Martinez, 243 A.D.2d 732).   In any event, the trial court's charge, viewed in its entirety, adequately conveyed the appropriate standard to the jury (see People v. Coleman, 70 N.Y.2d 817, 819;  People v. Joseph, 253 A.D.2d 529;  People v. Martinez, 243 A.D.2d 732).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

COVELLO, J.P., SANTUCCI, ANGIOLILLO and DICKERSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court