| People v Battle |
| 2010 NY Slip Op 04210 [73 AD3d 939] |
| May 11, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LeeBattle, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered November 19, 2007, convicting him of murder in the second degree and criminalpossession 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 People failed to disprove his justification defense beyonda reasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, is without merit.Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to disprove thejustification defense and to establish the defendant's guilt of murder in the second degree beyonda reasonable doubt. The evidence established that the victim was unarmed when the defendantshot at him three times from behind (see People v Rishton, 303 AD2d 692 [2003];People v Holmes, 242 AD2d 278 [1997]; People v Tineo, 144 AD2d 507[1988]). Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfiedthat the jury's rejection of the justification defense was not against the weight of evidence (see People v Romero, 7 NY3d633 [2006]).
Since the defendant failed to object to the trial court's justification charge or to requestsupplemental jury instructions, the defendant's argument concerning that charge is unpreservedfor appellate review (see CPL 470.05 [2]; People v Fowle, 60 AD3d 691 [2009]; People v Martinez,243 AD2d 732 [1997]). In any event, the trial court's charge, viewed in its entirety, adequatelyconveyed the appropriate standard to the jury (see People v Coleman, 70 NY2d 817, 819[1987]; People v Joseph, 253 AD2d 529 [1998]; People v Martinez, 243 AD2d732 [1997]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Covello, J.P., Santucci, Angiolillo and Dickerson, JJ., concur.