People v. Negron

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ozzi, J.), rendered January 14, 2014, convicting him of attempted assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court did not err in refusing to charge the jury on the defense of justification with respect to the charge of attempted assault in the first degree. "The rule is that the jury must be instructed on all claimed defenses which are supported by a reasonable view of the evidence-not by any view of the evidence, however artificial or irrational" (People v. Butts, 72 N.Y.2d 746, 750, 536 N.Y.S.2d 730, 533 N.E.2d 660 ; see People v. Bolling, 7 N.Y.3d 874, 875, 826 N.Y.S.2d 174, 859 N.E.2d 913 ; People v. Reynoso, 73 N.Y.2d 816, 818, 537 N.Y.S.2d 113, 534 N.E.2d 30 ; People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188 ; People v. Cotsifas, 100 A.D.3d 1015, 1015, 954 N.Y.S.2d 219 ; People v. Harper, 79 A.D.3d 944, 912 N.Y.S.2d 884 ). Here, viewing the evidence in the light most favorable to the defendant, there was no reasonable view of the evidence that would permit the jury to conclude that the defendant's actions were justified (see Penal Law § 35.15[1][b], [2] ; People v. Bolling, 7 N.Y.3d at 875, 826 N.Y.S.2d 174, 859 N.E.2d 913 ; People v. Reynoso, 73 N.Y.2d at 818, 537 N.Y.S.2d 113, 534 N.E.2d 30 ; People v. Watts, 57 N.Y.2d at 301–302, 456 N.Y.S.2d 677, 442 N.E.2d 1188 ; People v. Cotsifas, 100 A.D.3d at 1015, 954 N.Y.S.2d 219 ; People v. Carter, 74 A.D.3d 1375, 1378, 903 N.Y.S.2d 172 ). In addition, because "the defense of justification may excuse only the unlawful use of a weapon, not its unlawful possession" (People v. White, 75 A.D.3d 109, 122, 901 N.Y.S.2d 346 ; see People v. Pons, 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 ; People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 ; People v. Pritchett, 298 A.D.2d 411, 412, 751 N.Y.S.2d 250 ), the court properly declined to give a justification charge with respect to the count of criminal possession of a weapon in the second degree (see People v. Pons, 68 N.Y.2d at 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 ; People v. White, 75 A.D.3d at 123, 901 N.Y.S.2d 346 ; People v. Pritchett, 298 A.D.2d at 412, 751 N.Y.S.2d 250 ).

The defendant contends that comments made by the prosecutor in summation constituted reversible error because they inflamed the jury, misrepresented the law and the facts to the jury, inserted the prosecutor into the trial as an unsworn witness, shifted the burden of proof to the defense, and denigrated the defense. These contentions are unpreserved for appellate review. The defendant failed to object to the challenged comments, request curative instructions, or move for a mistrial on these grounds (see CPL 470.05[2] ; People v. Brown, 139 A.D.3d 964, 966, 31 N.Y.S.3d 587 ; People v. Lugg, 124 A.D.3d 679, 680, 998 N.Y.S.2d 459 ; People v. Peters, 98 A.D.3d 587, 589, 949 N.Y.S.2d 491 ). In any event, the remarks either were fair comment on the evidence (see People v. Brown, 139 A.D.3d at 966, 31 N.Y.S.3d 587 ; People v. Green, 90 A.D.3d 948, 948, 934 N.Y.S.2d 716 ; People v. German, 45 A.D.3d 861, 862, 846 N.Y.S.2d 348 ), were responsive to arguments raised by the defense in summation

(see People v. Lugg, 124 A.D.3d at 680, 998 N.Y.S.2d 459 ; People v. Green, 90 A.D.3d at 948, 934 N.Y.S.2d 716 ; People v. German, 45 A.D.3d at 862, 846 N.Y.S.2d 348 ), or constituted harmless error (see People v. Brown, 139 A.D.3d at 966, 31 N.Y.S.3d 587 ; People v. Morales, 87 A.D.3d 1165, 1166, 930 N.Y.S.2d 454 ; People v. German, 45 A.D.3d at 862, 846 N.Y.S.2d 348 ).