of the evidence, on defendant. N.Y. Penal Law § 125.25[3]. In People v. Diaz, 177 A.D.2d 500, 576 N.Y.S.2d 144 (1991), leave to appeal denied, 79 N.Y.2d 1048, 584 N.Y.S.2d 1015, 596 N.E.2d 413 (1992), defendant appealed his conviction for felony murder, arguing that the judge’s failure to charge the jury on the affirmative defense denied him a fair trial. The court sustained the ruling, noting that the defendant continued to participate in the robbery after his accomplice displayed the gun and while the fatal assault continued. Thus, the record does not contain a sufficient basis to establish- every element of the affirmative defense, and the trial court’s refusal to charge was proper. [Id. at 146 (citation omitted).] Cf. People v. Heyward, 111 A.D.2d 420, 488 N.Y.S.2d 486, 487 (1985) (<HOLDING>). Like the defendant in Diaz, this defendant
holding that defendant did not preserve his challenge to alleged prosecutorial misconduct where he did not timely object holding that a defendant was not entitled to the affirmative defense where the evidence did not support his contention that he did not aid in the homicidal act holding that the government did not waive an affirmative defense not pleaded in the answer because it raised the defense at a pragmatically sufficient time by listing the defense in the joint pretrial order holding that the district court erred in requiring the defense to disclose a report which the defense did not intend to introduce into evidence and which was merely designed to aid in the crossexamination of a witness for the state holding that defendant does not waive an affirmative defense if defendant raises it at a pragmatically sufficient time such as summary judgment and the defendants failure raise the affirmative defense in its answer did not cause the plaintiff prejudice