Opinion
1995-11761
Argued January 31, 2003.
February 18, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lipp, J.), rendered December 20, 1995, convicting her of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Before: GABRIEL M. KRAUSMAN, J.P., ROBERT W. SCHMIDT, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant did not preserve for appellate review her contention that the justification defense was not disproven beyond a reasonable doubt (see CPL 470.05; People v. Gray, 86 N.Y.2d 10, 19; People v. Nery, 243 A.D.2d 585). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to disprove the defense of justification beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
The defendant's contention that the Supreme Court erred in its justification charge is unpreserved for appellate review because she did not except to the charge as given (see CPL 470.05). In any event, the Supreme Court essentially gave the defendant the charge she requested concerning the factual issue of whether the store was her dwelling (but see People v. Hernandez, 98 N.Y.2d 175, 182-183 ), by telling the jury that the defendant had no duty to retreat if she were in her own dwelling.
The defendant's remaining contention is without merit (see People v. Suitte, 90 A.D.2d 80, 83).
KRAUSMAN, J.P., SCHMIDT, CRANE and RIVERA, JJ., concur.