| People v Diaz |
| 2010 NY Slip Op 02808 [71 AD3d 1158] |
| March 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nelson Diaz, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, Michael A. Wiesenfeld, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered April 17, 2008, convicting him of assault in the first degree (two counts) and resistingarrest, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]).
The Supreme Court's charge improperly limited the application of the defense of justificationto those circumstances in which the use of deadly physical force would be justified (seePenal Law § 35.15 [2]; People v Ogodor, 207 AD2d 461, 462 [1994];People v Jones, 148 AD2d 547, 549 [1989]; cf. People v Figueroa, 57 AD3d1003, 1004 [2008]). However, the error was harmless in light of the overwhelming evidence ofthe defendant's guilt, and there is no significant probability that the jury would have acquitted thedefendant but for the error (see People v Crimmins, 36 NY2d 230, 241-242 [1975];see also People v Griffith, 254 AD2d 753, 754 [1998]; cf. People v Ogodor, 207AD2d at 462-463).
The defendant's contention that the Supreme Court erred in refusing to submit assault in thesecond degree pursuant to Penal Law § 120.05 (1) as a lesser-included offense of assaultin the first degree pursuant to Penal Law § 120.10 (1) is unpreserved for appellate review(see People v Battles, 65 AD3d 1161, 1162 [2009]). In any event, this contention iswithout merit (see generally People v Scarborough, 49 NY2d 364, 371, 373-374 [1980]).[*2]
The sentence imposed was not excessive (see Peoplev Suitte, 90 AD2d 80, 83, 86 [1982]).
The defendant's remaining contention is without merit. Covello, J.P., Miller, Dickerson andBelen, JJ., concur.