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, Alexan*923der, Titone and Hancock, Jr., concur; Judge Simons taking no part.

Order affirmed in a memorandum.