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THE PEOPLE, ETC., RESPONDENT, v. LAWRENCE SANTOS, APPELLANT. (IND. NO. 8210/97).

DECISION ORDER

ORDERED that the judgment is affirmed.

The defendant contends that the trial court's justification charge was improper because the objective portion of the charge failed to properly instruct the jurors. This claim is unpreserved for appellate review, as the defendant failed to object to the charge as given or to request a supplemental charge (see, People v. Gurganious, 214 A.D.2d 681; People v. Noor, 177 A.D.2d 517). In any event, the contention is without merit. The trial court properly instructed the jury that it could find that the defendant was justified if it found that he reasonably believed that the victim was using or was about to use deadly physical force against him (see, Penal Law § 35.15[a]) and if so, to then consider whether the average person would have had the same belief under the same circumstances (see, People v. Bernard, 222 A.D.2d 599).

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PEOPLE v. SANTOS
(Feb 13, 2001)