| People v Hamilton |
| 2014 NY Slip Op 02849 [116 AD3d 614] |
| April 24, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Adolphus Hamilton, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Ann M. Donnelly, J.), rendered January13, 2012, convicting defendant, after a jury trial, of murder in the second degree andcriminal possession of a weapon in the second degree, and sentencing him to anaggregate term of 25 years to life, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. The People disproved defendant's justification defense beyond areasonable doubt (see e.g.People v Wimberly, 19 AD3d 518 [2d Dept 2005], lv denied 5 NY3d811 [2005]).
Although defendant asked the court to delete the concept of duty to retreat(see Penal Law § 35.15 [2] [a]) from its justification charge, he did so on adifferent ground from the ground he asserts on appeal, and never asserted that there wasa factual issue regarding whether the homicide occurred in his dwelling. Accordingly, hispresent challenge to the court's charge is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we conclude that there was no reasonableview of the evidence upon which to relieve defendant of the duty to retreat pursuant toPenal Law § 35.15 (2) (a) (i), and no factual issue in this regard requiringsubmission to the jury. In any event, any error in the court's justification charge washarmless (see People vPetty, 7 NY3d 277, 285-286 [2006]).
We perceive no basis for reducing the sentence.
The decision and order of this Court (115 AD3d 562 [2014]) entered herein onMarch 20, 2014 is hereby recalled and vacated. Concur—Tom, J.P., Friedman,Manzanet-Daniels, Gische and Clark, JJ.