People v. Johnson — 302 A.D.2d 539

Majority

p. 539

The People of the State of New York, Respondent, v Edna Johnson, Appellant.

[755 NYS2d 267]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lipp, J.), rendered December 20, 1995, convicting her of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant did not preserve for appellate review her contention that the justification defense was not disproven beyond a reasonable doubt (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 , 19 [1995]; People v Nery, 243 AD2d 585 [1997]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to disprove the defense of

p. 540

justification beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The defendant’s contention that the Supreme Court erred in its justification charge is unpreserved for appellate review because she did not except to the charge as given (see CPL 470.05 [2]). In any event, the Supreme Court essentially gave the defendant the charge she requested concerning the factual issue of whether the store was her dwelling (but see People v Hernandez, 98 NY2d 175 , 182-183 [2002]), by telling the jury that the defendant had no duty to retreat if she were in her own dwelling.

The defendant’s remaining contention is without merit (see People v Suitte, 90 AD2d 80 , 83 [1982]). Krausman, J.P., Schmidt, Crane and Rivera, JJ., concur.

Cases cited

People v. Gray 86 NY2d 10 N.Y. 1995-05-11 at 19 p. 539
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 539
People v. Hernandez 98 NY2d 175 N.Y. 2002-06-13 at 182-183 p. 540
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 at 83 p. 540