Appeal from a judgment of the District Court of Suffolk County, First District (Howard M. Bergson, J.), rendered March 25, 2005. The judgment convicted defendant, upon a jury verdict, of menacing in the second degree.

Judgment of conviction affirmed.

The sole issue raised on appeal is whether the lower court erred in charging justification pursuant to section 35.05 (2) of the Penal Law rather than section 35.15 (1) thereof.

Penal Law section 35.15 (1) involves justification for the use of physical force. The evidence adduced at trial established that defendant, at most, exhibited a gun but never pointed it directly at the individuals he believed posed a threat to him. He pointed the gun toward the ground or toward the bottom of the bumper of their automobile. There was no evidence indicating that defendant ever cocked the gun. Under the circumstances, we conclude that defendant displayed the weapon but never used physical force (cf. People v Magliato, 68 NY2d 24, 30 [1986]). Consequently, Penal Law section 35.15 (1) was not applicable. Section 35.05 (2) was the proper charge since it involves the use of conduct which would otherwise be an offense in order to prevent a public or private injury. Inasmuch as the court did not err and gave the proper charge, the judgment convicting defendant of menacing in the second degree (Penal Law § 120.14 [1]) must be affirmed.

Rudolph, P.J., McCabe and Molia, JJ., concur.
Decision Date: September 21, 2007