| People v Barreto |
| 2010 NY Slip Op 01571 [70 AD3d 574] |
| February 25, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Benigno Barreto, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered February 15,2008, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him,as a second felony offender, to a term of seven years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility. The victim's credibletestimony negated the defense of justification by establishing that defendant was the initialaggressor. Moreover, under the version of the facts contained in defendant's testimony, even ifhe was initially justified there was no justification for his continued use of deadly physical forceto slash the victim's neck; according to defendant, by that time he had already disarmed hisassailant and placed the situation under control.
Defendant did not preserve his challenge to the court's justification charge, and we decline toreview it in the interest of justice. As an alternative holding, we find that the justification charge,viewed as a whole, sufficiently conveyed the principle that if the People did not disprove thedefense of justification beyond a reasonable doubt, defendant was entitled to an acquittal as to allcounts (see People v Palmer, 34AD3d 701, 703 [2006], lv denied 8 NY3d 848 [2007]). The charge could not havemisled the jury with regard to the relationship between the charges and the justification defense.On the record before us, although defendant claims his counsel was ineffective in failing toobject to the charge, we find that defendant received effective assistance under the state andfederal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see alsoStrickland v Washington, 466 US 668 [1984]). Regardless of whether counsel should haveasked the court to charge the jury in accordance with defendant's present claim, defendant hasnot established that he was prejudiced (see People v White, 66 AD3d 585, 586-587 [2009]).
The court properly exercised its discretion when, in response to a note from the deliberatingjury requesting a definition of assault in the second degree, it reread the elements of that crimeand treated lack of justification as one of the essential elements. Since the court was [*2]not obligated to go beyond the jury's request, it properly declined toprovide a full charge on justification (see People v Almodovar, 62 NY2d 126, 131-132[1984]). Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acosta and Abdus-Salaam, JJ.