| People v Harper |
| 2010 NY Slip Op 09375 [79 AD3d 944] |
| December 17, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidHarper, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered September 24, 2009, convicting him of manslaughter in the first degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the trial court did not err by giving a justification chargewhich did not reference a third party who fought with the defendant shortly before the struggle betweenthe defendant and the victim which resulted in the victim's demise. Viewing the evidence in the light mostfavorable to the defendant, we find that the defendant was not entitled to a justification instructionregarding that third party (see Penal Law § 35.15 [2]; People v McGhee, 4 AD3d 485[2004]; People v Powell, 181 AD2d 923 [1992]). Moreover, when viewed in its entirety, thecourt's charge adequately conveyed the proper definitions and elements of the justification defense (see People v Cheeseboro, 52 AD3d526 [2008]; People v Strong, 256 AD2d 427 [1998]). Mastro, J.P., Fisher, Roman andSgroi, JJ., concur.