| People v Johnson |
| 2010 NY Slip Op 05874 [75 AD3d 426] |
| July 1, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Johnson, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered June 9,2008, as amended July 21, 2008, convicting defendant, after a jury trial, of attempted robbery inthe second degree, criminal mischief in the fourth degree and two counts of assault in the thirddegree, and sentencing him, as a second felony offender, to an aggregate term of three years,unanimously affirmed.
The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. We do not find the testimony of theprosecution witnesses to be materially inconsistent.
Defendant did not preserve his claim that the court should have instructed the jury on thedefense of justification, and we decline to review it in the interest of justice. As an alternativeholding, we reject it on the merits. At the charge conference, defense counsel made it clear thatshe was not requesting a justification charge. A sua sponte justification charge would haveimproperly interfered with defense strategy since "a defendant unquestionably has the right tochart his own defense" (People v DeGina, 72 NY2d 768, 776 [1988]). The record fails tosupport defendant's present assertion that trial counsel "pursued" a justification defense; on thecontrary, the principal lines of defense were that the incident was a dispute rather than anattempted robbery, and that there was a lack of proof of certain elements of assault and criminalmischief. In any event, a justification charge would not have been supported by a reasonableview of the evidence.
Defendant's claim that his trial counsel rendered ineffective assistance by failing to [*2]request a justification instruction is unreviewable on direct appealbecause it involves matters of strategy outside the record (see People v Rivera, 71 NY2d705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Concur—Mazzarelli, J.P.,Renwick, Freedman, Richter and Abdus-Salaam, JJ.