Opinion
Argued October 7, 1986
Decided November 11, 1986
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Raymond Harrington, J.
Denis Dillon, District Attorney (Lawrence J. Schwartz and Anthony J. Girese of counsel), for appellant.
David J. Wukitsch for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant's request for a justification charge, though made after summations and the court's initial charge, neither of which referred to that defense, was timely (CPL 300.10). The court's denial of the request was improper even though the act upon which the defense is based was not intentional (see, People v McManus, 67 N.Y.2d 541; People v Padgett, 60 N.Y.2d 142; People v Huntley, 87 A.D.2d 488, affd 59 N.Y.2d 868).
Chief Judge WACHTLER and Judges MEYER, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur; Judge SIMONS taking no part.
Order affirmed in a memorandum.