section 35.15(2) justification charge in New York

2015Viewing the evidence in the light most favorable to the defendant, the jury reasonably could have concluded that the defendant reasonably believed that the use of deadly force was necessary to prevent the victim from robbing him (see Penal Law § 35.15 [2] [b]; People v Huntley, 87 AD2d 488, 494 [1982], affd 59 NY2d 868 [1983]; People v Davis, 74 AD2d 607, 608-609 [1980]; see also Penal Law § 160.00; People v Pagan, 19 NY3d 91, 96 [2012]; People v Green, 5 NY3d 538, 543-544 [2005]).

2014Although defendant does not argue on appeal that the evidence was legally insufficient to support the conviction of endangering the welfare of a child, we reach this issue by exercising, as a matter of discretion in the interest of justice, our “jurisdiction to consider any question of law ‘involving error or defect in the criminal court proceedings which may have adversely affected the appellant’ . . . regardless of whether the question is raised on appeal” (People v Badine, 301 AD2d 178, 180 [2002], quoting CPL 470.15 [1]; see CPL 470.35 [1]; Matter of Stagnar v Stagnar, 98 AD2d 983 [1983];

2014Although defendant does not argue on appeal that the evidence was legally insufficient to support the conviction of endangering the welfare of a child, we reach this issue by exercising, as a matter of discretion in the interest of justice, our “jurisdiction to consider any question of law ‘involving error or defect in the criminal court proceedings which may have adversely affected the appellant’ . . . regardless of whether the question is raised on appeal” (People v Badine, 301 AD2d 178, 180 [2002], quoting CPL 470.15 [1]; see CPL 470.35 [1]; Matter of Stagnar v Stagnar, 98 AD2d 983 [1983];

2009Furthermore, we do not join in our dissenting colleague’s conclusion that the distinct “choice of evils” justification defense set forth in Penal Law § 35.05 (2) is applicable to this case (see generally People v Maher, 79 NY2d 978 [1992]).

1995Consequently, the defendant failed to preserve this claim for appellate review (see, People v Autry, 75 NY2d 836 ; People v Thomas, 50 NY2d 467 ; People v Samuels, 198 AD2d 384 ).

1995Consequently, the defendant failed to preserve this claim for appellate review (see, People v Autry, 75 NY2d 836 ; People v Thomas, 50 NY2d 467 ; People v Samuels, 198 AD2d 384 ).

1995Consequently, the defendant failed to preserve this claim for appellate review (see, People v Autry, 75 NY2d 836 ; People v Thomas, 50 NY2d 467 ; People v Samuels, 198 AD2d 384 ).

1990Neither the error in the court’s charge under Penal Law § 35.15 nor the errors in refusing to charge on the subject of justification under the other cited Penal Law sections may be viewed as harmless (see, People v Crimmins, 36 NY2d 230, 240-241 ; see also, People v Padgett, 60 NY2d 142, 144-145 ).

1990There are no circumstances, however, under which the justifiable use of force can be a defense to the crime of criminal possession of a weapon (see, People v Pons, 68 NY2d 264, 267 ).

1987Additionally, the trial court did not err in charging the justification defense pursuant to Penal Law § 35.15 (2) and in declining to charge the provisions of Penal Law § 35.15 (1), as the defendant’s actions clearly constituted the use of deadly physical force under the circumstances of this ease (see, e.g., People v Davis, 118 AD2d 206 , lv denied 68 NY2d 768 ; Matter of Charles W., 61 AD2d 1033 ; People v Dingley, 50 AD2d 361 , revd on other grounds 42 NY2d 888 ).

1987Likewise, the defendant’s claim that the "duty to retreat” element of the justification defense has no application to a prosecution for assault is without merit (see, People v Dingley, supra).

1987Additionally, the trial court did not err in charging the justification defense pursuant to Penal Law § 35.15 (2) and in declining to charge the provisions of Penal Law § 35.15 (1), as the defendant’s actions clearly constituted the use of deadly physical force under the circumstances of this ease (see, e.g., People v Davis, 118 AD2d 206 , lv denied 68 NY2d 768 ; Matter of Charles W., 61 AD2d 1033 ; People v Dingley, 50 AD2d 361 , revd on other grounds 42 NY2d 888 ).

1987Additionally, the trial court did not err in charging the justification defense pursuant to Penal Law § 35.15 (2) and in declining to charge the provisions of Penal Law § 35.15 (1), as the defendant’s actions clearly constituted the use of deadly physical force under the circumstances of this ease (see, e.g., People v Davis, 118 AD2d 206 , lv denied 68 NY2d 768 ; Matter of Charles W., 61 AD2d 1033 ; People v Dingley, 50 AD2d 361 , revd on other grounds 42 NY2d 888 ).

1987Additionally, the trial court did not err in charging the justification defense pursuant to Penal Law § 35.15 (2) and in declining to charge the provisions of Penal Law § 35.15 (1), as the defendant’s actions clearly constituted the use of deadly physical force under the circumstances of this ease (see, e.g., People v Davis, 118 AD2d 206 , lv denied 68 NY2d 768 ; Matter of Charles W., 61 AD2d 1033 ; People v Dingley, 50 AD2d 361 , revd on other grounds 42 NY2d 888 ).

1986In People v Almodovar ( 62 NY2d 126 , supra), where defendant was chárged with counts of murder, assault and criminal possession of a weapon, we held that the court correctly refused to charge justification as a defense to criminal possession of a weapon, second degree.

1986For reasons appearing hereafter, we conclude that the refusal of the justification charge under Penal Law § 35.15 was proper (see, People v Khan, 113 AD2d 773, 774 ; People v Wynn, 108 AD2d 768 ).

1986For reasons appearing hereafter, we conclude that the refusal of the justification charge under Penal Law § 35.15 was proper (see, People v Khan, 113 AD2d 773, 774 ; People v Wynn, 108 AD2d 768 ).