People v. Swaby — 8 A.D.3d 591

Majority

p. 591

The People of the State of New York, Respondent, v Jermaine Swaby, Appellant.

[778 NYS2d 711]

Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Tomei, J.), rendered May 21, 2002, 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 justification charge was erroneous is unpreserved for appellate review (see CPL 470.05 [2]; People v Harrell, 59 NY2d 620 , 622 [1983]; People v Gaskins, 300 AD2d 506 [2002]). In any event, the charge, taken as a whole, properly instructed the jury on the justification defense (see People v Wesley, 76 NY2d 555 , 559 [1990]; People v Bernard, 222 AD2d 599 [1995]; People v

p. 592

Thomas, 179 AD2d 793 , 794 [1992]; People v Madden, 171 AD2d 558 , 559 [1991]).

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

Cases cited

People v. Harrell 59 NY2d 620 N.Y. 1983-04-26 at 622 p. 591
People v. Wesley 76 NY2d 555 N.Y. 1990-10-23 at 559 p. 591
People v. Bernard 222 AD2d 599 N.Y. App. Div. 1995-12-18 p. 591
People v. Madden 171 AD2d 558 N.Y. App. Div. 1991-03-21 at 559 p. 592
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 p. 592