Opinion
2014-03-12
The PEOPLE, etc., respondent, v. Diobenton DELMAS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Andrew C. Gilman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Andrew C. Gilman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered September 14, 2010, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED the judgment is affirmed.
The defendant's challenge to certain portions of the charge on justification regarding the duty to retreat are unpreserved for appellate review ( see CPL 470.05[2]; People v. Battle, 73 A.D.3d 939, 940, 899 N.Y.S.2d 878;People v. Fowle, 60 A.D.3d 691, 691, 873 N.Y.S.2d 500;People v. Floyd, 34 A.D.3d 494, 495, 823 N.Y.S.2d 532). In any event, the trial court's justification charge properly conveyed the correct legal standard regarding the duty to retreat ( see Penal Law § 35.15[2][a]; People v. Aiken, 4 N.Y.3d 324, 328, 795 N.Y.S.2d 158, 828 N.E.2d 74;People v. Jones, 3 N.Y.3d 491, 494–495, 788 N.Y.S.2d 651, 821 N.E.2d 955).
Since the justification charge was not improper, the defendant's ineffective assistance of counsel claim, which is based solely upon his counsel's failure to object to the charge, is without merit ( see People v. McKenzie, 48 A.D.3d 594, 595, 852 N.Y.S.2d 217;People v. Stover, 36 A.D.3d 837, 838, 831 N.Y.S.2d 183).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contention is without merit. RIVERA, J.P., LOTT, ROMAN and HINDS–RADIX, JJ., concur.