Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Larry R.C. Stephen, J.), rendered September 12, 2006, after a jury trial, convicting him of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Larry R.C. Stephen, J.), rendered September 12, 2006, affirmed.

Defendant's challenge to the court's justification charge is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. To the extent that the theory of provocation (Penal Law § 35.15[1][a]) was not applicable to the facts of this case, its inclusion in the court's justification charge was essentially surplusage that could not have affected the verdict or caused defendant any prejudice (see People v Augustin, 11 AD3d 290, 291 [2004], lv denied 4 NY3d 741 [2004]), given the evidence presented at trial and the thorough and otherwise proper jury instructions on the concept of "initial aggressor".

Defendant's claims of prosecutorial misconduct, to the extent preserved, are without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 29, 2009