People v Valerie Seeley

People v Seeley 2004 NY Slip Op 09536 [13 AD3d 562] December 20, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

The People of the State of New York, Respondent,
v
Valerie Seeley, Appellant.

—[*1]Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered April 25, 2003, convicting her of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the trial court erred in failing to charge the jury that the defense of justification is available to an initial aggressor if her or she withdraws from the encounter and effectively communicates that withdrawal to the other person, but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force. This claim is unpreserved for appellate review (see CPL 470.05 [2]; People v Barrett, 11 AD3d 551 [2004]), and, under the circumstances of this case, we decline to review it in the exercise of our interest of justice jurisdiction. Ritter, J.P., Goldstein, Smith and Fisher, JJ., concur.