
    Fourth Department,
    July, 1986
    (July 11, 1986)
    The People of the State of New York, Respondent, v Gary Bradley, Appellant.
   Judgment unanimously affirmed. Memorandum: Despite the exception and request to charge by defendant, the court erroneously instructed the jury that the burden of proving the defense of justification was on defendant. Two and one-half hours after the jury commenced deliberations, the court admitted its earlier mistake and correctly recited that the burden of proof was on the People to disprove the defense of justification beyond a reasonable doubt (Penal Law § 25.00 [1]).

On appeal, defendant argues that the delay in correcting erroneous jury instructions deprived him of a fair trial in that the jurors may have reached certain conclusions concerning the defense of justification based upon the flawed charge. We disagree.

From a reading of the record, it is clear that, based upon questions the jurors submitted to the court to aid them in their deliberations, they had not yet decided the issue of justification. Indeed, the jury was specifically asking questions of the court concerning the defense of justification, and before answering these questions the court reinstructed the jury on the burden of proof on the defense.

We have reviewed defendant’s other arguments and they do not warrant a reversal. (Appeal from judgment of Supreme Court, Monroe County, Mastrella, J. — assault, second degree.) Present — Dillon, P. J., Doerr, Pine, Lawton and Schnepp, JJ.  