Opinion
2019-154 N CR
10-29-2020
The PEOPLE of the State of New York, Respondent, v. John A. CLIFFORD, Appellant.
John A. Clifford, appellant pro se. Nassau County District Attorney (Jason R. Richards and Michael K. Degree of counsel), for respondent.
John A. Clifford, appellant pro se.
Nassau County District Attorney (Jason R. Richards and Michael K. Degree of counsel), for respondent.
PRESENT: THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was convicted, following a jury trial, of menacing in the second degree ( Penal Law § 120.14 [1] ). On appeal, defendant argues, among other things, that the District Court erred in denying his general request for a "justification charge" and that the verdict is repugnant, as he was acquitted of criminal possession of a weapon in the fourth degree ( Penal Law § 265.01 [2] ).
Defendant's contention on appeal that he was entitled to a justification charge under Penal Law §§ 35.25 and 35.15 (2) as to the menacing count of which he was convicted is unpreserved for appellate review (see CPL 470.05 [2] ). In any event, viewing the evidence in a light most favorable to defendant, there was no reasonable view of the evidence supporting the elements of a justification defense. Defendant testified that, while driving his vehicle in Long Beach, as he was speeding up to drive around a car that had turned in front of him and was about to hit his vehicle, he saw the complainant and his daughter crossing the street just ahead. The complainant pushed his daughter back as defendant swerved out of the way, and the complainant swung the diaper bag he was carrying like a baseball bat and hit defendant's vehicle's rear window with it. Defendant traveled about 50 feet down the road and stopped his vehicle. Defendant took a quick look, saw damage to his window, grabbed a sheathed hatchet from his tools, exited his vehicle, took seven steps toward the complainant, held up the still-sheathed hatchet, and said, "Come on. If you want a piece of me, come get it." Under the circumstances presented, no reasonable view of the evidence could support the conclusion that defendant committed the act of menacing in the second degree, but did so under circumstances warranting a justification charge under either Penal Law § 35.15 (2) or § 35.25 (see People v. Richardson , 115 AD3d 617, 618 [2014] ; People v. Oakley , 66 Misc 3d 142[A], 2020 NY Slip Op 50160[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020] ).
Defendant's contention that the verdict convicting him of menacing in the second degree ( Penal Law § 120.14 [1] ) and acquitting him of criminal possession of a weapon in the fourth degree ( Penal Law § 265.01 [2] ) is repugnant is not preserved for appellate review (see People v. Ransom , 170 AD3d 1199, 1200 [2019] ; People v. Edwards , 129 AD3d 1499 [2015] ), and we decline to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant's remaining contentions are without merit.
Accordingly, the judgment of conviction is affirmed.
ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.