| People v Copp |
| 2013 NY Slip Op 04619 [107 AD3d 911] |
| June 19, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Carlton Copp, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Crecca, J.), rendered December 1, 2010, convicting him of assault in the third degree,menacing in the third degree, and endangering the welfare of a child, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the County Court should have instructed the jurywith regard to the defense of justification under Penal Law § 35.05 (2) isunpreserved for appellate review, since he never requested such a charge and he did notobject to the charge given (see CPL 470.05 [2]; People v Harrell, 59NY2d 620, 622 [1983]; Peoplev Khan, 89 AD3d 750, 751 [2011]; People v Jenkins, 81 AD3d 662 [2011]). In any event,there was no reasonable view of the evidence that would have supported a justificationcharge relative to any of the crimes of which the defendant was convicted, since, underthe defendant's version of the events, he did not engage in conduct that was justifiedunder the choice-of-evils theory of justification (see People v Rodriguez, 16 NY3d 341, 345 [2011]).
The defendant's contention that the evidence was legally insufficient to support hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish the defendant's guilt of assault in the third degree, menacingin the third degree, and endangering the welfare of a child beyond a reasonable doubt.Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the County Court's interested witness charge,which followed the New York Pattern Jury Instructions, was not unbalanced (see People v Piedra, 87 AD3d706, 707 [2011]; People vWilliams, 81 AD3d 993, 994 [2011]; People v Campbell, 68 AD3d 890, 891 [2009]; People v Dixon, 63 AD3d854, 855 [2009]; People vBrokenbough, 52 AD3d 525, 525 [2008]; People v Varughese, 21 AD3d 1126, 1128 [2005];People v McCray, 204 AD2d 490, 491 [1994]).[*2]
We agree with the defendant that the CountyCourt erred in allowing the prosecution, over the defendant's objection, to impeach thedefendant's testimony with his failure to come forward to the police with an exculpatoryversion of the events, and in allowing the People to comment upon the defendant'spost-arrest silence in summation (see People v McArthur, 101 AD3d 752, 753 [2012]; People v Tucker, 87 AD3d1077, 1079 [2011]). However, since the evidence of the defendant's guilt wasoverwhelming, and there was no reasonable possibility that the error might havecontributed to the conviction, the error was harmless (see People v Crimmins, 36NY2d 230, 241-242 [1975]). Skelos, J.P., Angiolillo, Chambers and Hinds-Radix, JJ.,concur.