People v. White — 305 A.D.2d 616

Majority

p. 616

The People of the State of New York, Respondent, v Milton White, Appellant.

[759 NYS2d 362]

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flaherty, J.), rendered March 19, 1998, 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 trial court failed to provide a complete instruction to the jury on the defense of justification (see Penal Law § 35.20) has not been preserved for appellate review, as the defendant failed to alert the trial court to any error at a point when it could have been corrected (see CPL 470.05 [2]; People v McCray, 149 AD2d 736 [1989]). In any event, viewed in the light most favorable to the defendant, the evidence does not support the issuance of the burglary justification charge where there was no surprise intrusion by

p. 617

strangers and the threat of burglary by his acquaintances of over 10 years was not such that it required deadly force to terminate the burglary under any reasonable view of the evidence (see People v Cox, 92 NY2d 1002 , 1005 [1998]; People v Godfrey, 80 NY2d 860 , 862 [1992]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Florio, J.P., Schmidt, Townes and Crane, JJ., concur.

Cases cited

People v. McCray 149 AD2d 736 N.Y. App. Div. 1989-04-24 p. 616
People v. Cox 92 NY2d 1002 N.Y. 1998-12-17 at 1005 p. 617
People v. Godfrey 80 NY2d 860 N.Y. 1992-07-02 at 862 p. 617
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 p. 617