People v Kin Wong

2011 NY Slip Op 00570

Decided on February 1, 2011

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 1, 2011
Andrias, J.P., Sweeny, Moskowitz, DeGrasse, Abdus-Salaam, JJ.
4165 3859/06






Dan Savatta, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sean T.
Masson of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 15, 2007, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.

Defendant did not request a charge on the defense of justification, and the court was under no obligation to deliver one sua sponte. It was clear that defense counsel was pursuing a theory that the complainant was stabbed with his own knife during a struggle over the knife, as opposed to a theory that defendant stabbed the complainant in self-defense. Regardless of whether the evidence might have supported multiple defenses, an unrequested justification charge would have improperly interfered with defendant's strategy (see People v Johnson, 75 AD3d 426 [2010]).

Defendant's claim that his trial counsel rendered ineffective assistance by failing to request a justification charge is unreviewable on direct appeal because it involves matters outside the record concerning counsel's strategic choices
(see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 1, 2011

CLERK