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PEOPLE v. COMFORT

113 A.D.2d 430 (1985)

The People of the State of New York, Respondent, v. Joseph Comfort, Appellant

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

December 20, 1985

Attorney(s) appearing for the Case

Moot & Sprague (Joseph Sedita of counsel), for appellant.

Kenneth R. Fisher for respondent.

O'DONNELL, J., concurs with BOOMER, J; DOERR, J. P., concurs on the constraint of People v Crosby (115 AD2d ___ [decided Dec. 20, 1985]); PINE and SCHNEPP, JJ., dissent and vote to reverse defendant Joseph Comfort's conviction of murder, second degree, and grant a new trial in an opinion by SCHNEPP, J.

BOOMER, J.

The conviction of defendant Joseph Comfort of second degree murder should be affirmed. The court's instruction on the issue of justification was not erroneous. In any event, this issue was not preserved for review as a matter of law and we fail to see how the instruction was prejudicial to defendant (see, People v Crosby, 115 AD2d ___ [decided Dec. 20, 1985]).

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