| People v Delmas |
| 2014 NY Slip Op 01622 [115 AD3d 758] |
| March 12, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Diobenton Delmas, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, JoyceSlevin, and Andrew C. Gilman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Parker, J.), rendered September 14, 2010, convicting him of assault in the second degreeand criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered the judgment is affirmed.
The defendant's challenge to certain portions of the charge on justification regardingthe duty to retreat are unpreserved for appellate review (see CPL 470.05 [2]; People v Battle, 73 AD3d939, 940 [2010]; People vFowle, 60 AD3d 691, 691 [2009]; People v Floyd, 34 AD3d 494, 495 [2006]). In any event,the trial court's justification charge properly conveyed the correct legal standardregarding the duty to retreat (see Penal Law § 35.15 [2] [a]; People v Aiken, 4 NY3d324, 328 [2005]; People vJones, 3 NY3d 491, 494-495 [2004]).
Since the justification charge was not improper, the defendant's ineffective assistanceof counsel claim, which is based solely upon his counsel's failure to object to the charge,is without merit (see People vMcKenzie, 48 AD3d 594, 595 [2008]; People v Stover, 36 AD3d 837, 838 [2007]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is without merit. Rivera, J.P., Lott, Roman andHinds-Radix, JJ., concur.