Opinion
June 30, 1998
Appeal from the Supreme Court, New York County (Herbert Altman, J.).
Defendant's challenge to the court's inclusion of the concept of provocation (Penal Law § 35.15 [a]) in its justification charge is unpreserved for appellate review and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court's charge could not have caused defendant any prejudice, given the evidence presented at trial (see, People v. Grega, 72 N.Y.2d 489, 496-497). The court's instruction on the weapon possession charge, wherein the court stated, inter alia, that if defendant intended to use the box cutter unlawfully against another, it was irrelevant that defendant may also have had the intention to use it lawfully in another context, was a correct statement of the law (People v. Roach, 188 A.D.2d 385, lv denied 81 N.Y.2d 846), and there was no reasonable possibility that the jury could have misinterpreted this statement as a directive to disregard defendant's explanation of his possession of the box cutter.
Concur — Milonas, J. P., Rosenberger, Nardelli, Wallach and Rubin, JJ.