| People v Martin |
| 2016 NY Slip Op 05658 [141 AD3d 734] |
| July 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ramon Martin, Also Known as Roman Martin,Appellant. |
Lynn W.L. Fahey, New York, NY (Rahshanda Sibley of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Seth M.Lieberman, and Michael L. Brenner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Marrus, J.), rendered November 29, 2012, convicting him of attempted assault in thefirst degree, assault in the third degree, and criminal obstruction of breathing or bloodcirculation, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
At trial, the complainant testified that the defendant, with whom she was previouslyacquainted, assaulted her during a visit to her apartment. The complainant stated thatduring the course of the assault and ensuing struggle, the defendant attempted to chokeher, first with a shoelace and then with a telephone cord, attacked her with a knife,punched her in the face several times, and bit her on the arm and cheek. As a result of theattack, the complainant sustained injuries including ligature marks on her neck, andlacerations on her hand and chest. The defendant raised a justification defense, taking thestand to testify that it was the complainant who first attacked him by pushing him into thewall, pulling down his pants, grabbing his "groin area," and telling him "you know what Iwant, just give it to me." The defendant testified that he then "knew that [thecomplainant] wanted to have sex with [him]." The defendant denied having cut thecomplainant or using anything to strangle or choke her, admitting only to punching her inthe face three times in order to free himself from her hold on his genitals.
On appeal, the defendant contends that defense counsel was ineffective because hedid not object to certain alleged errors committed by the Supreme Court during its chargeto the jury on the defense of justification, and that this deprived him of a fair trial. Wedisagree.
Initially, the defendant contends that the Supreme Court erred in its charge to the juryregarding the defense of justification. Specifically, the defendant contends that the courtshould have charged justification with respect to each count as an element of each count,rather than give a comprehensive justification instruction after having charged the jurywith respect to all counts in the indictment. However, we find that the court's charge,taken as a whole, conveyed to the jury the [*2]correctstandard (see People vMedina, 18 NY3d 98, 104 [2011]; People v Whitney, 117 AD3d 762 [2014]). Since theinstruction was adequate in that respect, defense counsel's failure to object to it did notconstitute ineffective assistance of counsel (see People v Delmas, 115 AD3d 758 [2014]).
The defendant also contends that counsel was ineffective because he did not objectto the Supreme Court's instruction regarding the justified use of deadly physical force,and failed to request an alternative instruction. In this regard, the defendant contends thatthe court should have instructed that, in addition to proving the defendant's guilt of thecharged crimes beyond a reasonable doubt, the People had to prove beyond a reasonabledoubt that the defendant was not justified in attempting to use a knife to cause seriousinjury to the complainant to prevent the complainant from forcibly raping him (seePenal Law § 35.15 [2] [b]; People v Irving, 130 AD3d 844, 845 [2015]; People vColeman, 122 AD2d 568, 569 [1986]). However, such a theory of justification wasinconsistent with the defendant's own testimony, in which he denied that he slashed thecomplainant. In fact, the defendant testified that he had "no idea" how the complainantsustained laceration injuries. Since the proposed justification instruction applied to theuse of deadly force to defend against rape, and the defendant denied using, or attemptingto use such force, the defendant failed to demonstrate the absence of a strategic or otherlegitimate explanation for defense counsel's failure to object or to request that charge (see People v Hendrix, 132AD3d 1348 [2015]; see generally People v Benevento, 91 NY2d 708, 712[1998]). Indeed, since the defendant testified that he did not use deadly force against thecomplainant, we cannot conclude that defense counsel was ineffective for failing to seeka jury charge covering deadly force that the defendant swore he did not use (seePeople v Hendrix, 132 AD3d at 1348-1349; People v Moore, 66 AD3d 707, 711 [2009], affd 15NY3d 811 [2010]).
Finally, in this regard, the defendant contends that counsel was ineffective for failingto object when, in response to a jury inquiry, the Supreme Court did not again charge thejury concerning the defense of justification as it had originally charged. However, thiswas not reversible error (see People v Almodovar, 62 NY2d 126, 132 [1984]; People v Grant, 127 AD3d990 [2015]). The court's response to the jury inquiry adequately answered theinquiry and explained the correct standard regarding the defense of justification. Thus,defense counsel's failure to object did not constitute ineffective assistance of counsel (see People v Delmas, 115AD3d 758 [2014]).
The defendant also contends that the Supreme Court improperly admitted evidenceof a prior altercation between the complainant and a third party. Since the People neverestablished a connection between that incident and the instant matter, the evidence wasirrelevant (see People vGiles, 11 NY3d 495, 499 [2008]; People v Scarola, 71 NY2d 769, 777[1988]). Nevertheless, the error in admitting the evidence does not warrant reversal. Thealleged bad act, which did not involve the defendant, did not present a Molineuxissue (People v Molineux, 168 NY 264 [1901]), since it could show nothingabout the defendant's propensity (see People v Arafet, 13 NY3d 460, 465 [2009]). In anyevent, the court's comprehensive instruction to the jury immediately following thetestimony in question was sufficient to offset any potential for prejudice, as the jury ispresumed to have followed the trial court's limiting instructions, and that presumption isappropriate here (see People vMorris, 21 NY3d 588, 598 [2013]; People v Harris, 117 AD3d 847, 854 [2014], affd26 NY3d 1 [2015]; People vMooney, 62 AD3d 725, 726 [2009]).
The sentence imposed was not excessive.
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Mastro, J.P., Austin, Sgroi and Maltese, JJ., concur.