Opinion
Submitted December 18, 2000.
February 13, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barros, J.), rendered February 10, 1998, convicting him of manslaughter in the first degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Gwen M. Schoenfeld of counsel), for respondent.
Before: GABRIEL M. KRAUSMAN, J.P., SONDRA MILLER, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant contends that the trial court's justification charge was improper because the objective portion of the charge failed to properly instruct the jurors. This claim is unpreserved for appellate review, as the defendant failed to object to the charge as given or to request a supplemental charge (see, People v. Gurganious, 214 A.D.2d 681; People v. Noor, 177 A.D.2d 517). In any event, the contention is without merit. The trial court properly instructed the jury that it could find that the defendant was justified if it found that he reasonably believed that the victim was using or was about to use deadly physical force against him (see, Penal Law § 35.15[a]) and if so, to then consider whether the average person would have had the same belief under the same circumstances (see, People v. Bernard, 222 A.D.2d 599).