| People v Poston |
| 2012 NY Slip Op 04093 [95 AD3d 729] |
| May 29, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JamesPoston, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David C. Bornstein of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered December 18,2008, as amended January 8, 2009, convicting defendant, after a jury trial, of attempted assault inthe first degree, assault in the second degree and criminal possession of a weapon in the thirddegree, and sentencing him, as a second felony offender, to an aggregate term of eight years,unanimously affirmed.
Defendant failed to preserve, and expressly waived, his argument that the court erred ininstructing the jury only on the justified use of deadly force rather than ordinary physical force,and we decline to review it in the interest of justice. Defendant specifically requested a charge onthe justified use of deadly force and explicitly told the court, following the charge, that it wassatisfactory. As an alternative holding, we reject it on the merits. The court did not err inrefraining from delivering such a charge sua sponte, as this would have improperly interferedwith defense counsel's strategy (seePeople v Kin Wong, 81 AD3d 421 [2011], lv denied 16 NY3d 896 [2011]).
Defendant's primary defense at trial was that the knife belonged to the victim, who pulled itout and began to open it.Defendant contended that he grabbed for the knife and it pinched or clamped on the victim's handbefore falling to the ground. Defendant testified that he had not intended to cut the victim, butwas trying to disarm him. This claim of an accidental injury required no justification charge atall.
To the extent that defendant's testimony warranted a justification charge, it provided no basisfor one that only involved the use of ordinary physical force. There was no reasonable view ofthe evidence, considered in the light most favorable to defendant, that he used anything less thandeadly force (see People v Steele,19 AD3d 175 [2005], lv denied 5 NY3d 795 [2005]). Defendant partially severed thevictim's finger, severely lacerating the artery, digital nerve and flexor tendons, which were sobadly damaged that doctors could not fully repair them (see People v Willock, 298 AD2d161 [2002], lv denied 99 NY2d 566 [2002]).[*2]
Moreover, as the court instructed, each of the chargesincluded an element of use or possession of a dangerous instrument. Therefore, it was clear to thejurors that if they accepted defendant's testimony that he never possessed the knife at any point,defendant would be entitled to an acquittal for that reason as well (see People v White, 66 AD3d 585,586 [2009], lv denied 14 NY3d 807 [2010]).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters outside the record concerning strategy and attorney-clientcommunications (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love,57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we find thatdefendant received effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466US 668 [1984]). Counsel's failure to request a charge on the justified use of ordinary physicalforce may have been based on a reasonable strategic determination that such a charge would becounterproductive and difficult to reconcile with the accidental cutting claim. Defendant'sargument concerning counsel's opening statement is likewise unreviewable on the present record,and, to the extent reviewable, without merit. Concur—Tom, J.P., Andrias, DeGrasse,Richter and Rom�n, JJ.