Opinion
September 21, 1987
Appeal from the Supreme Court, Queens County (Ferraro, J.).
Ordered that the judgment is affirmed.
William "Red" Petty was shot in the chest at close range by the defendant on September 10, 1982, and subsequently died as a result of the bullet wound. The testimony adduced at the trial established that the defendant exited his car upon observing a street confrontation between Michael Boyd, who was holding a gun, and the decedent, who was holding a brick. The defendant interceded by disarming both Boyd and the decedent. Rather than safely retreating by leaving the scene in his car, the defendant's testimony shows that he waited with gun in hand while Red walked 15 feet in the opposite direction in search of another brick. When Red, who was intoxicated, approached the defendant, the latter fired a warning shot into the ground and a second shot hit the decedent in the chest. There was conflicting testimony from witnesses to the incident as to whether or not Red swung a large piece of concrete at the defendant's head when the second shot was fired. According to witnesses for the prosecution, the defendant made a statement after taking the gun from Boyd and prior to firing the shots that if Boyd was not going to shoot Red, "I will". There was evidence that the decedent had previously been incarcerated for robbery and criminal possession of a weapon. While the defendant knew that the decedent had been recently released from jail, he testified that he did not know the nature of the charges against Red. Aside from evidence that the defendant knew Red had been in prison, a determination of whether the defendant reasonably believed physical force was necessary to prevent serious physical injury or death to himself turned upon conflicting testimony as to the physical movements of the decedent and the verbal remarks of the participants.
The defendant contends that the court's charge on the defense of justification was erroneous as it conveyed to the jury an objective, reasonable person standard instead of a solely subjective standard based on what the defendant thought under the circumstances. Contrary to the defendant's contention, a justification charge which includes a requirement that the defendant meet an objective standard based on how a reasonable person would have acted is proper (see, People v. Goetz, 68 N.Y.2d 96; People v. Person, 124 A.D.2d 681, 682, lv denied 69 N.Y.2d 715; People v. Fox, 123 A.D.2d 642, lv denied 68 N.Y.2d 1000; People v. Reeves, 123 A.D.2d 403, 404, lv denied 69 N.Y.2d 716).
Additionally, the defendant contends that the court's charge on the justification defense, which tracked the statutory language of Penal Law § 35.15, did not adequately explain the meaning of "reasonably believes". Since no timely objection was made to the court's charge, and since defense counsel did not request the court to elaborate upon the meaning of "reasonably believes", this issue has not been preserved for appellate review as a matter of law (see, CPL 470.05; People v. Thomas, 50 N.Y.2d 467, 471; People v. Ecock, 124 A.D.2d 672, lv denied 69 N.Y.2d 710). While the court's charge should have been more complete (see, People v. Goetz, supra, at 114-115), in light of the overwhelming evidence of guilt, in particular the defendant's ability to safely retreat, and in the absence of any substantial likelihood that an elaboration of the justification charge would have resulted in a contrary verdict, reversal of the judgment of conviction is not warranted in the interest of justice (see, People v. Lopez, 113 A.D.2d 475, lv denied 67 N.Y.2d 946; People v Swinson, 111 A.D.2d 275, lv denied 66 N.Y.2d 922). Mangano, J.P., Bracken, Weinstein and Rubin, JJ., concur.