| People v Ali |
| 2011 NY Slip Op 07982 [89 AD3d 1412] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AndrewAli, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered December22, 2009. The judgment convicted defendant, upon a jury verdict, of assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of assault inthe first degree (Penal Law § 120.10 [1]). At trial the sole issue was whether defendant's actionswere justified pursuant to Penal Law § 35.20 (3), which permits a person in possession orcontrol of a dwelling "who reasonably believes that another person is committing or attempting tocommit a burglary of such dwelling . . . [to] use deadly physical force upon such otherperson when he or she reasonably believes such to be necessary to prevent or terminate thecommission or attempted commission of such burglary." Defendant contends that County Court'ssupplemental instruction concerning whether a vestibule and outdoor porch constituted parts of thedwelling was erroneous and confused the jury. Defendant, however, in fact requested a portion of thesupplemental instruction, thereby waiving any objection thereto (see generally People v Figgins, 72 AD3d 1599 [2010], lv denied15 NY3d 893 [2010]), and he failed to object to the remainder of the instruction, thereby failing topreserve his contention for our review with respect to the remainder of the instruction (see People v Swail, 19 AD3d 1013[2005], lv denied 6 NY3d 759 [2005], 6 NY3d 853 [2006]; People v Pross, 302AD2d 895, 897 [2003], lv denied 99 NY2d 657 [2003]). We decline to exercise our powerto address defendant's contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
Defendant failed to preserve for our review his contention that the conviction is not based on legallysufficient evidence (see People vHawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]) and,in any event, that contention lacks merit. As noted, in order to be justified in using deadly physical forceagainst another person, defendant was required to believe that the person was committing or attemptingto commit a burglary and that deadly physical force was necessary to prevent or terminate the burglary(see Penal Law § 35.20 [3];People v White, 75 AD3d 109, 117 [2010], lv denied 15 NY3d 758 [2010]). Evenassuming, arguendo, that the person in fact entered the vestibule with the intent to commit a burglary,we note that defendant's own witness [*2]testified that the person hadfled from the apartment at the time defendant began stabbing him. "Once [that person] fled from theapartment, defendant could not reasonably believe that force was necessary to prevent or terminate thecommission of a burglary . . . , and the justification for the use of force ceased" (People v Pine, 82 AD3d 1498, 1501[2011]; see White, 75 AD3d at 117-118; People v Lugo, 291 AD2d 359 [2002],lv denied 98 NY2d 699 [2002]). Also contrary to defendant's contention, viewing theevidence in light of the elements of the crime of assault as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that the prosecutor's reason for striking aparticular juror was pretextual, having failed to raise before the trial court the specific claim he nowraises on appeal (see People v Jones, 284 AD2d 46, 48 [2001], affd 99 NY2d 264[2002]; People v Holloway, 71 AD3d1486, 1486-1487 [2010], lv denied 15 NY3d 774 [2010]). We further conclude thatdefendant was not denied effective assistance of counsel based on his attorney's failure to preserve thatBatson challenge for our review inasmuch as the prosecutor offered a legitimate race neutralreason for striking the prospective juror in question, and thus defendant's challenge would not havebeen successful (see People v Cuthrell, 284 AD2d 982, 982-983 [2001]; see also Peoplev Ortiz, 302 AD2d 257 [2003], lv denied 100 NY2d 541 [2003]). Viewing the evidence,the law and the circumstances of this case, in totality and as of the time of the representation, we rejectdefendant's further allegations of ineffective assistance of counsel and conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant further contends that he was denied a fair trial based on prosecutorial misconduct duringthe prosecutor's summation. Contrary to defendant's contention, however, "[t]he majority of thecomments in question were within the broad bounds of rhetorical comment permissible duringsummations . . . , and they were either a fair response to defense counsel's summation orfair comment on the evidence . . . Even assuming, arguendo, that some of the prosecutor'scomments were beyond those bounds, we conclude that they were not so egregious as to deprivedefendant of a fair trial" (People vMcEathron, 86 AD3d 915, 916 [2011] [internal quotation marks omitted]). Finally, therecord establishes that, in sentencing defendant, the court took into account the mitigating factorspresented by defendant, and we conclude that the sentence is not unduly harsh or severe.Present—Scudder, P.J., Centra, Fahey, Peradotto and Lindley, JJ.