People v Johnson

2009 NY Slip Op 01236 [59 AD3d 638]

February 17, 2009

Appellate Division, Second Department

As corrected through Wednesday, April 1, 2009

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

—[*1]Alan Katz, Garden City, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and AndrewFukuda of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Ayres, J.),rendered July 27, 2007, convicting him of attempted robbery in the first degree and criminalpossession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant argues that the trial court erred in failing to instruct the jury on the defense ofjustification. However, contrary to his contention, the justification defense does not apply to thecharges of either attempted robbery in the first degree (see People v Ware, 36 AD3d 838, 839 [2007]; People vEllison, 175 AD2d 846 [1991]), or criminal possession of the weapon in the third degree(see People v Pons, 68 NY2d 264, 266 [1986]; People v Almodovar, 62 NY2d126, 130 [1984]; People v Smith,54 AD3d 421, 422 [2008]; People v Tasheem, 298 AD2d 411, 412 [2002]). Rivera,J.P., Angiolillo, Carni and McCarthy, JJ., concur.