People v. Porter

—Judgment, Supreme Court, Bronx County (Richard Price, J.), rendered July 31, 1997, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The court properly declined to submit manslaughter in the second degree to the jury as a lesser included offense of depraved indifference murder. In light of the evidence that defendant hit the victim 23 times with a hammer, the jury could not have reasonably found defendant guilty of reckless conduct without at the same time finding that the reckless conduct occurred in circumstances evincing a depraved indifference to life.

The court’s main charge, read as a whole (see, People v Coleman, 70 NY2d 817), properly explained to the jury the relationship between the defense of justification and the crimes with which defendant was charged. The court’s supplemental charge was entirely proper given the specific information requested by the deliberating jury (People v Almodovar, 62 NY2d 126).

Defendant’s challenges to the People’s summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged portions of the summation did not deprive defendant of a fair trial (see, People v DAlessandro, 184 AD2d 114, 118-119, Iv denied 81 NY2d 884). Concur — Tom, J. P., Ellerin, Wallach, Rubin and Saxe, JJ.