People v. Ramos , 168 A.D.2d 518 ( 1990 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered December 14, 1988, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

On appeal the defendant contends that he was denied a fair trial by the court’s justification charge, which, inter alia, included allegedly unwarranted instructions concerning the principles of "initial aggressor” and provocation. However, since the defendant failed to object to the court’s justification charge on these grounds, his claim is unpreserved for appellate review (see, People v Oliver, 63 NY2d 973, 975; People v Love, 57 NY2d 1023, 1025).

In any event, contrary to the defendant’s contention, the evidence adduced at trial warranted the giving of the challenged instructions to the jury. The record demonstrates that the defendant could have driven away from the confrontation. Instead, even though he admitted that he had not seen the victim in possession of a weapon, the defendant drew his own weapon, emerged from his car, and began shooting at the victim. The defendant’s testimony concerning his claim that he saw the victim reach for "something” as he approached the driver’s side of the car was equivocal, as was his testimony that the victim "jumped” him, and "tried”, but did not succeed, in hitting him with his fists. Under these circumstances, the court properly instructed the jury to consider the principles of "initial aggressor” and provocation.

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Mangano, P. J., Eiber, O’Brien and Ritter, JJ., concur.