People v. Bennett , 623 N.Y.S.2d 59 ( 1995 )

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of assault in the first degree and criminal possession of a weapon in the third degree, based upon his assault of the victim on the open porch of defendant’s dwelling. He contends that County Court erred in instructing the jury concerning the duty to retreat without using deadly physical force (see, Penal Law § 35.15 [2] [a] [i]). At trial, defendant objected to the charge on the ground that he had no duty to retreat because the altercation began inside the dwelling and moved outside to the porch. He argues for the first time on appeal that the open porch is part of the dwelling. That argument is unpreserved (see, CPL 470.05 [2]). Were we to reach the merits, we would hold that the open porch is not part of the dwelling. (Appeal from Judgment of Onondaga County Court, Elliott, J.—Assault, 1st Degree.) Present—Denman, P. J., Pine, Lawton, Doerr and Davis, JJ.