| People v Mason |
| 2015 NY Slip Op 07517 [132 AD3d 777] |
| October 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lanze R. Mason, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Roni C. Piplani of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Margulis, J.), rendered December 6, 2012, convicting him of assault in the seconddegree and criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant's assertion that the trial courtshould have granted his request for a justification charge is preserved for appellatereview. However, the trial court properly declined to charge the jury on the defense ofjustification since, viewing the record in the light most favorable to the defendant, noreasonable view of the evidence supported such a charge (see People v Watts, 57NY2d 299, 302 [1982]; Peoplev Syville, 130 AD3d 658 [2015]; People v Baranov, 121 AD3d 706, 707 [2014]; People v Small, 80 AD3d786, 786-787 [2011]; People v Dickerson, 67 AD3d 700, 700-701 [2009]). Inaddition, there was no factual issue for resolution by the jury with respect to whether thedefendant used physical force or deadly physical force (see Penal Law§ 35.15 [1], [2]). The trial court properly determined, in denying thedefendant's application for a justification charge, that the defendant used deadly physicalforce when he struck the complainant in the face with the glass bottle (see PenalLaw §§ 10.00 [11]; 35.15 [2]; People v White, 66 AD3d 585, 586 [2009]; People v Garcia, 59 AD3d211, 212 [2009]; People vSaenz, 27 AD3d 379, 380 [2006]; cf. People v Jones, 148 AD2d547, 548-549 [1989]). Moreover, the jury ultimately convicted the defendant of assault inthe second degree (see Penal Law § 120.05 [2]) and, therefore,necessarily determined that he used deadly physical force (see Penal Law§ 10.00 [11], [13]; People v Grant, 105 AD3d 676 [2013]; People vWhite, 66 AD3d at 586; People v Garcia, 59 AD3d 211, 212 [2009]).
The defendant's contention that he was deprived of a fair trial due to the cumulativeeffects of improper questions and remarks made by the prosecutor duringcross-examination and summation, and the prosecutor's use during summation of aphotograph depicting the complainant's injuries, is unpreserved for appellate review (see People v Mosquero, 128AD3d 985 [2015]; People vCherry, 127 AD3d 879, 880 [2015]; People v Wallace, 123 AD3d 1151, 1152 [2014]; People v Floyd, 97 AD3d837 [2012]). In any event, the prosecutor's conduct during cross-examination wasnot improper (see People vWongsam, 105 AD3d 980, 981 [2013]; People v Peters, 98 AD3d 587, 589 [2012]; People vFloyd, 97 AD3d at [*2]837-838; People v Gross, 78 AD3d1196, 1197 [2010]; Peoplev Williams, 13 AD3d 660, 660 [2004]; People v Rivera, 292 AD2d 549,549 [2002]), and most of the challenged summation remarks were either fair comment onthe evidence and the reasonable inferences to be drawn therefrom, permissible rhetoricalcomment, or responsive to defense counsel's summation (see People v Willis, 122 AD3d950, 950 [2014]; People vYusuf, 119 AD3d 619, 620 [2014]; People v Morales, 87 AD3d 1165, 1166 [2011]; People v Umoja, 70 AD3d867, 868 [2010]). To the extent that any of the prosecutor's remarks duringsummation denigrated the defense, they did not rise to the level of egregious misconductthat would have deprived the defendant of a fair trial (see People v Cherry, 127AD3d at 880; People v Wallace, 123 AD3d at 1152; People v Quezada, 116 AD3d796, 797 [2014]; People vPersaud, 98 AD3d 527, 529 [2012]). Moreover, the disputed photograph wasnot used for the sole purpose of arousing the emotions of the jurors, and was not soinflammatory as to have deprived the defendant of a fair trial (see People v Valenko, 126AD3d 1020, 1021 [2015]; People v Dorcinvil, 122 AD3d 874, 876 [2014]).
Similarly unpreserved for appellate review is the defendant's contention that the trialcourt gave an unbalanced interested witness charge by failing to charge that thecomplainant was an interested witness while charging that the defendant was aninterested witness (see CPL 470.05 [2]; People v DiMassi, 113 AD3d 632, 632 [2014]). In anyevent, this contention is without merit. Evidence that the complainant had commenced acivil action against the defendant was before the jury, and the jury was instructed toconsider the interest or lack of interest of any witness in the outcome of that action andwhether any witness had a bias, hostility, or some other attitude that affected thetruthfulness of the witness's testimony in the instant criminal matter (see People v Herschman, 119AD3d 813, 814 [2014]; People v Newman, 107 AD3d 827, 828-829 [2013]; People v Williams, 81 AD3d993, 994 [2011]; People v Smith, 240 AD2d 600, 601 [1997]; People vPereda, 200 AD2d 774, 775 [1994]).
The defendant also failed to preserve for appellate review his contention that he wasdeprived of a fair trial by an improper remark made by the trial court to the prospectivejurors during voir dire (see CPL 470.05 [2]; People v Cunningham, 119 AD3d 601, 601 [2014]).Contrary to the defendant's contention, the court's alleged misconduct did not constitute amode of proceedings error exempting him from the rules of preservation (see People v Brown, 7 NY3d880, 881 [2006]; People v Cunningham, 119 AD3d at 601-602; People v Casanova, 62 AD3d88, 91-92 [2009]; People v McDuffie, 270 AD2d 362 [2000]). In any event,the court's remark to the prospective jurors, while inappropriate, does not warrantreversal (see People vBailey, 66 AD3d 491, 491 [2009]; People v Daniel, 37 AD3d 731, 732 [2007]; People vAlston, 225 AD2d 453, 454 [1996]).
Finally, considering all of the relevant circumstances of this matter, including thecollateral immigration consequences to the defendant, the sentence imposed was notexcessive (see People vSerrano, 129 AD3d 997 [2015]; People v Suitte, 90 AD2d 80 [1982]).Rivera, J.P., Roman, Miller and LaSalle, JJ., concur.