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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID HARPER, Appellant.

Ordered that the judgment is affirmed.

Contrary to the defendant's contention, the trial court did not err by giving a justification charge which did not reference a third party who fought with the defendant shortly before the struggle between the defendant and the victim which resulted in the victim's demise. Viewing the evidence in the light most favorable to the defendant, we find that the defendant was not entitled to a justification instruction regarding that third party ( see Penal Law § 35.15; People v McGhee, 4 AD3d 485; People v Powell, 181 AD2d 923). Moreover, when viewed in its entirety, the court's charge adequately conveyed the proper definitions and elements of the justification defense ( see People v Cheeseboro, 52 AD3d 526; People v Strong, 256 AD2d 427).

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PEOPLE v. HARPER
(Dec 17, 2010)