THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANTONIO ORTIZ JR DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTONIO ORTIZ, JR., DEFENDANT–APPELLANT.

KA 14–00582

Decided: September 29, 2017

PRESENT:  CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that County Court erred in failing to charge the jury on the defense of mistake of fact (see § 15.20[1][a] ).  Defendant failed to preserve that contention for our review (see People v. Streeter, 21 AD3d 1291, 1291–1292, lv denied 6 NY3d 898), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).  Contrary to defendant's further contention, the sentence is not unduly harsh or severe.

Mark W. Bennett

Clerk of the Court