People v. Crosby , 115 A.D.2d 988 ( 1985 )

Judgment affirmed. Memorandum: Viewing the trial court’s entire charge on the defense of justification, we find that it was without reversible error. One may be justified in using deadly physical force upon another if he "reasonably believes that such other person is using or about to use deadly physical force” (Penal Law § 35.15 [2] [a]). The defense is only available where the belief of the defendant that he was subject to an imminent attack is a reasonable one (People v Miller, 39 NY2d 543, 548). The court’s charge tracked the statute and made it clear that it was defendant’s perception of events that was critical to his claim of justification (see, People v Miller, supra). We find no prejudice to the defendant arising from the court’s explanatory reference to the "ordinary reasonable person” (cf. People v Santiago, 110 AD2d 569; People v Wagman, 99 AD2d 519). Moreover, defendant took no exception to the charge as given.

We have reviewed the other issues raised on appeal and find them to be without merit.

All concur, except Doerr, J., who dissents and votes to reverse and grant a new trial, in the following memorandum.