upholding justification charge when it "mirrored the model charge"Summary of this case from Cheeseboro v. Cunningham
Argued April 22, 2002.
May 8, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mastro, J.), rendered December 19, 1994, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Davis Polk Wardwell [Zachary D. Stern] of counsel), for respondent.
Before: SANTUCCI, J.P., MILLER, KRAUSMAN, GOLDSTEIN, JJ.
ORDERED that the judgment is affirmed.
The 14-year-old defendant was convicted of intentional second-degree murder as a result of his shooting of a 16-year-old boy who tragically happened to be in the wrong place at the wrong time. Allegedly in retribution for a prior robbery of one of his friends, the defendant chased the alleged robber down a crowded Brooklyn street, firing multiple shots at him from a nine-millimeter handgun. One of those shots went astray and killed Jerome Foster. Even crediting the defendant's claim that he had obtained the gun only moments earlier by taking it from the alleged robber during a struggle, the jury clearly was within its province in rejecting the defendant's justification defense (see People v. Hernandez, 192 A.D.2d 363).
The defendant's present challenges to the court's justification charge are unpreserved for appellate review (see CPL 470.05; People v. Abreu, 287 A.D.2d 644; People v. Lovelace, 287 A.D.2d 652). In any event, the court's charge mirrored the model charge as set forth in 1 CJI(NY) 35.15(2)(b). The trial court properly instructed the jury that it could find that the defendant was justified if it found that he reasonably believed that deadly force was necessary to defend himself from a robbery and that the average reasonable person in the defendant's situation also would have reasonably believed that such force was necessary (see People v. Santos, 280 A.D.2d 561, 562).
The defendant likewise failed to preserve for appellate review his contentions regarding the prosecutor's summation (see CPL 470.05; People v. Tevaha, 84 N.Y.2d 879; People v. Heide, 84 N.Y.2d 943; People v. Medina, 53 N.Y.2d 951; People v. Banks, 258 A.D.2d 525, 526). In any event, although some of the prosecutor's remarks exceeded the bounds of advocacy and were better left unsaid (see People v. Ashwal, 39 N.Y.2d 105, 109; People v. Walters, 251 A.D.2d 433, 434), the errors were harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 241-242; People v. Brown, 285 A.D.2d 472; People v. Clausell, 223 A.D.2d 598).
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., S. MILLER, KRAUSMAN and GOLDSTEIN, JJ., concur.