
    The People of the State of New York, Appellant, v Caperahim Khan, Respondent.
    Argued October 7, 1986;
    decided November 11, 1986
    
      APPEARANCES OF COUNSEL
    
      Denis Dillon, District Attorney (Lawrence J. Schwartz and Anthony J. Gírese of counsel), for appellant.
    
      David J. Wukitsch for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s request for a justification charge, though made after summations and the court’s initial charge, neither of which referred to that defense, was timely (CPL 300.10 [5]). The court’s denial of the request was improper even though the act upon which the defense is based was not intentional (see, People v McManus, 67 NY2d 541; People v Padgett, 60 NY2d 142; People v Huntley, 87 AD2d 488, affd 59 NY2d 868).

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander, Titone and Hancock, Jr., concur; Judge Simons taking no part.

Order affirmed in a memorandum.  