Opinion
June 21, 1990
Appeal from the Supreme Court, Bronx County (Lawrence Bernstein, J.).
Defendant's issues on appeal are unpreserved and, in any event, without merit.
The court's justification instruction to the jury to evaluate the reasonableness of defendant's belief that physical force was required in view of whether a reasonable person would have held the same belief as compared to could have held the same belief, had de minimis effect and could not have led the jury astray (see, People v. Goetz, 68 N.Y.2d 96). The charge properly emphasized the requirement of "reasonableness" under the circumstances confronting defendant, and allowed the jury to consider defendant's knowledge of the decedent's prior violent behavior and/or the defendant's state of mind.
The prosecutor's comment during cross-examination suggesting that defendant fabricated his story after having the "luxury of being able to see all the witnesses" was improper (see, People v Jackson, 143 A.D.2d 363; People v. Bolden, 82 A.D.2d 757), but immediately obviated by adequate curative instructions.
While it is misconduct for a prosecutor to use inflammatory language to appeal to the sympathies and fears of the jury (see, People v. Nash, 49 A.D.2d 827; People v. Ashwal, 39 N.Y.2d 105), the remark regarding the impact on society of an acquittal, in context, went to the factual weaknesses in defendant's justification defense.
The sentence imposed was not unduly harsh or excessive. Convicted of the lesser included charge of manslaughter in the first degree, defendant, at the time of arrest, was in possession of a loaded weapon and 26 hollow-point bullets, indicating that he was not a peaceful man. In view of these circumstances, the trial court's maximum sentence was not an abuse of discretion (People v. Farrar, 52 N.Y.2d 302).
Concur — Ross, J.P., Carro, Wallach and Rubin, JJ.