| People v White |
| 2009 NY Slip Op 07683 [66 AD3d 585] |
| October 27, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Derrick White, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Mary C. Farrington of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered April 8,2008, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him,as a second violent felony offender, to a term of six years, unanimously affirmed.
The court properly declined to submit third-degree assault as a lesser included offense, sincethere was no reasonable view of the evidence, viewed most favorably to defendant, that thevictim's physical injuries were caused by something other than being struck with a glass bottlethat shattered in his face (see People vJoseph, 23 AD3d 174, 175 [2005], lv denied 6 NY3d 777 [2006]). The locationand extent of the injuries, as established by photographs, were incompatible with defendant'salternate theories of causation, and we reject defendant's argument to the contrary. Defendantfailed to preserve his additional argument that the court's submission to the jury of certain othercounts of the indictment required the further submission of third-degree assault as a lesserincluded offense, and we decline to review it in the interest of justice.
Defendant did not preserve his challenges to the court's justification charge, and we declineto review them in the interest of justice. As an alternative holding, we also reject them on themerits. The court was not required to instruct the jury on the justifiable use of nondeadly forcebecause, even when considered in the light most favorable to defendant, there was no reasonableview of the evidence that he used anything less than "force which, under the circumstances inwhich it [was] used, [was] readily capable of causing death or other serious physical injury"(Penal Law § 10.00 [11]) when he threw the bottle at the victim's face (see generally People v Bulla, 13 AD3d118 [2004], lv denied 4 NY3d 762 [2005]). Moreover, in order to convict defendantof second-degree assault by means of a dangerous instrument (see Penal Law §120.05 [2]), the jury essentially had to find that he used deadly force (see People v Garcia, 59 AD3d 211[2009], lv denied 12 NY3d 853 [2009]; People v Mickens, 219 AD2d 543[1995], lv denied 87 NY2d 904 [1995]). Furthermore, the court's instructions adequatelyconveyed the principle that if the jury found that defendant was not guilty of a greater charge onthe basis of justification, it was not to consider any lesser counts (see People v Palmer,34 AD3d [*2]701, 703 [2006], lv denied 8 NY3d 848[2007]). The difference between the court's instruction on this subject and the one suggested bydefendant on appeal is a matter of form rather than substance.
Defendant's ineffective assistance of counsel claim is based on his attorney's failure tochallenge the two portions of the court's justification charge discussed above. On the existingrecord, to the extent it permits review, we find that defendant received effective assistance underthe state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];see also Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that hiscounsel's failure to raise these issues was unreasonable, or that there was any reasonablepossibility that the verdict would have been more favorable to defendant if the court hadinstructed the jury in accordance with his present claims. Concur—Mazzarelli, J.P.,Andrias, Moskowitz, Renwick and Richter, JJ.