People v. Craft

Kane, J. P., and Mikoll, J., dissent in part and concur in part in the following memorandum by Mikoll, J. Mikoll, J. (dissenting in part and concurring in part).

There is no reasonable view of the evidence that would support a charge to the jury that defendant’s use of physical force was justified (Penal Law*, § 35.15). To the contrary, the use of physical force under the circumstances presented is specifically authorized by statute (Penal Law, § 35.10, subd 2). Moreover, in the absence of any request to so charge, or any exception to the charge as given, which in our view was sufficient to alert the jury to defendant’s claim of self-defense, the issue is not preserved for review on this appeal. Furthermore, this court recently unanimously affirmed a conviction in a case barely distinguishable factually from the matter at hand (People v Roberts, 91 AD2d 1099), and we do not perceive any reason to reverse the conviction for attempted assault in the second degree in the interest of justice. 11 The judgment should be affirmed.