| People v Negron |
| 2017 NY Slip Op 03535 [150 AD3d 764] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Pablo Negron, Appellant. |
Lynn W. L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Sholom J.Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ozzi, J.),rendered January 14, 2014, convicting him of attempted assault in the first degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not err in refusing to chargethe jury on the defense of justification with respect to the charge of attempted assault in the firstdegree. "The rule is that the jury must be instructed on all claimed defenses which are supportedby a reasonable view of the evidence—not by any view of the evidence, however artificialor irrational" (People v Butts, 72 NY2d 746, 750 [1988]; see People v Bolling, 7 NY3d 874,875 [2006]; People v Reynoso, 73 NY2d 816, 818 [1988]; People v Watts, 57NY2d 299, 301 [1982]; People vCotsifas, 100 AD3d 1015, 1015 [2012]; People v Harper, 79 AD3d 944 [2010]). Here, viewing the evidencein the light most favorable to the defendant, there was no reasonable view of the evidence thatwould permit the jury to conclude that the defendant's actions were justified (see PenalLaw § 35.15 [1] [b]; [2]; People v Bolling, 7 NY3d at 875; People vReynoso, 73 NY2d at 818; People v Watts, 57 NY2d at 301-302; People vCotsifas, 100 AD3d at 1015; Peoplev Carter, 74 AD3d 1375, 1378 [2010]). In addition, because "the defense of justificationmay excuse only the unlawful use of a weapon, not its unlawful possession" (People v White, 75 AD3d 109,122 [2010]; see People v Pons, 68 NY2d 264, 267 [1986]; People v Almodovar,62 NY2d 126, 130 [1984]; People v Pritchett, 298 AD2d 411, 412 [2002]), the courtproperly declined to give a justification charge with respect to the count of criminal possession ofa weapon in the second degree (see People v Pons, 68 NY2d at 267; People vWhite, 75 AD3d at 123; People v Pritchett, 298 AD2d at 412).
The defendant contends that comments made by the prosecutor in summation constitutedreversible error because they inflamed the jury, misrepresented the law and the facts to the jury,inserted the prosecutor into the trial as an unsworn witness, shifted the burden of proof to thedefense, and denigrated the defense. These contentions are unpreserved for appellate review. Thedefendant failed to object to the challenged comments, request curative instructions, or move fora mistrial on these grounds (see CPL 470.05 [2]; People v Brown, 139 AD3d 964, 966 [2016]; People v Lugg, 124 AD3d 679,680 [2015]; People v Peters, 98AD3d 587, 589 [2012]). In any event, the remarks either [*2]were fair comment on the evidence (see People v Brown,139 AD3d at 966; People v Green,90 AD3d 948, 948 [2011]; People vGerman, 45 AD3d 861, 862 [2007]), were responsive to arguments raised by the defensein summation (see People v Lugg, 124 AD3d at 680; People v Green, 90 AD3d at948; People v German, 45 AD3d at 862), or constituted harmless error (see People vBrown, 139 AD3d at 966; People vMorales, 87 AD3d 1165, 1166 [2011]; People v German, 45 AD3d at 862).Dillon, J.P., Roman, Cohen and Miller, JJ., concur.