People v. Fuller , 74 A.D.2d 879 ( 1980 )

Appeal by defendant from a judgment of the County Court, Orange County, rendered June 16, 1977, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. As commendably conceded by the District Attorney, the court’s charge on the issue of justification was insufficient. Under circumstances where the evidence indicates that the defendant shot his victim during a time in which the victim was attempting to commit a robbery, it is error not to charge the jury that a person is justified in using deadly physical force if he reasonably believed it necessary to use such force in order to resist his victim’s imminent use of physical force against himself, in the course of a robbery attempt. (See People v Davis, 74 AD2d 607; Penal Law, § 35.15, subd 2, par [b].) Moreover, although the question of a failure to properly charge is not preserved for our review as a matter of law where no specific request to charge or exception was taken at trial (as in the present matter), in cases where justification is the central issue to be decided, we have held that such error warrants a new trial in the interest of justice. (People v Davis, supra.) Titone, J. P., Cohalan, Martuscello and O’Connor, JJ., concur.