The People of the State of New York, Respondent, v. Alexander Wise, Appellant

The People of the State of New York, Respondent, v Alexander Wise, Appellant. [675 NYS2d 531] [MAJORITY] —Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered May 22, 1996, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to concurrent terms of 5V2 years, unanimously affirmed. Defendant’s challenge to the court’s inclusion of the concept of provocation (Penal Law § 35.15 [1] [a]) in its justification charge is unpreserved for appellate review and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court’s charge could not have caused defendant any prejudice, given the evidence presented at trial (see, People v Grega, 72 NY2d 489, 496-497). The court’s instruction on the weapon possession charge, wherein the court stated, inter alia, that if defendant intended to use the box cutter unlawfully against another, it was irrelevant that defendant may also have had the intention to use it lawfully in another context, was a correct statement of the law (People v Roach, 188 AD2d 385, lv denied 81 NY2d 846), and there was no reasonable possibility that the jury could have misinterpreted this statement as a directive to disregard defendant’s explanation of his possession of the box cutter. Concur — Milonas, J. P., Rosenberger, Nardelli, Wallach and Rubin, JJ.