| People v Hall |
| 2008 NY Slip Op 00730 [48 AD3d 1032] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Randy Hall,Appellant. |
—[*1] John C. Tunney, District Attorney, Bath (Brooks T. Baker of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), renderedAugust 17, 2005. The judgment convicted defendant, upon a jury verdict, of attempted murder inthe second degree, assault in the second degree, criminal possession of a weapon in the seconddegree, criminal mischief in the fourth degree, petit larceny, burglary in the second degree andtampering with physical evidence in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1])and assault in the second degree (§ 120.05 [2]). County Court properly denied the requestof defendant for a justification charge inasmuch as there is no reasonable view of the evidence,viewed in the light most favorable to defendant, to support a justification defense (see Peoplev Reynoso, 73 NY2d 816, 818 [1988]; People v Gawlick, 32 AD3d 1207 [2006], lv denied 8NY3d 845 [2007]; People v Steele,19 AD3d 175 [2005], lv denied 5 NY3d 795 [2005]). Even assuming, arguendo, thatdefendant reasonably believed that the victim was using or was about to use deadly physicalforce against him, we conclude that there is no reasonable view of the evidence that defendantwas unable to retreat with complete safety and, indeed, the evidence established that defendantchased the victim as the victim ran out of the house (see Penal Law § 35.15 [2] [a];People v Taylor, 23 AD3d 693,694 [2005], lv denied 6 NY3d 818 [2006]; People v Siler, 288 AD2d 625, 628[2001], lv denied 97 NY2d 709 [2002]). Contrary to the further contention of defendant,because "the court [properly] declined to instruct the jury on [justification], it properly precludeddefendant from raising that issue in summation" (People v Bynum, 33 AD3d 376, 377 [2006], lv denied 7NY3d 924 [2006]).
Defendant failed to preserve for our review his present contention that the court erred infailing to sever the trial from that of his codefendant because there was an inherent conflict in thedefenses available to them inasmuch as defendant's severance motion was based on differentgrounds (see People v Wooden, 296 AD2d 865 [2002], lv denied 99 NY2d 541[2002]). In any event, that contention is without merit because his defenses were not inirreconcilable conflict with those of his codefendant (see generally People v Mahboubian,74 NY2d 174, 184 [1989]). Defendant further contends that the court erred in refusing tosuppress the statement that he made to the police [*2]because hehad invoked his right to counsel. We reject that contention. The statement of defendant that hedid not have to respond to a question asking for his name without an attorney present was not anunequivocal request for an attorney (see generally People v Glover, 87 NY2d 838, 839[1995]). Further, although defendant initially circled "yes" on the Miranda waiver formindicating that he wanted to talk to an attorney, he said "never mind" and "that's not what Imeant" when the officer questioned him about his response on that form. Defendant thenimmediately circled "no" next to that question, placed his initials next to it, and signed the form.The officers testified that defendant never requested an attorney. We thus conclude under thesecircumstances that defendant knowingly and voluntarily waived his Miranda rights (see People v Valverde, 13 AD3d658 [2004], lv denied 4 NY3d 836 [2005]). Present—Scudder, P.J., Centra,Fahey, Green and Pine, JJ.