Summary
holding that the instruction "was applicable to the issue of whether defendant's intent was lawful."
Summary of this case from Echevarria v. SheahanOpinion
312 2138/13.
02-25-2016
The PEOPLE of the State of New York, Respondent, v. Fabian ECHEVARRIA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and DLA Piper LLP, (U.S.), New York (Marc A. Silverman of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and DLA Piper LLP, (U.S.), New York (Marc A. Silverman of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (James Burke, J.), rendered March 5, 2014, as amended June 19, 2014, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3 ½ to 7 years, unanimously affirmed.
The court provided a meaningful and correct response to a note from the deliberating jury (see People v. Malloy, 55 N.Y.2d 296, 301–302, 449 N.Y.S.2d 168, 434 N.E.2d 237 1982, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 1982 ). Defendant was charged with possession of a knife with the intent to use it unlawfully. The main issue at trial was whether, during an altercation, defendant wielded the knife with intent to use it against the complainants justifiably, and therefore lawfully. In its main charge, the court instructed the jury accordingly (CJI2d[N.Y.] Penal Law art. 265, Intent to Use Unlawfully and Justification), but it did not add a definition of justification. During deliberations, the jury sent a note that the court reasonably interpreted as showing difficulty with the concept of justifiable use of the knife, and the court properly exercised its discretion in responding with an explanation of justification as set forth in Penal Law § 35.15(1). That definition was applicable to the issue of whether defendant's intent was lawful, and we reject defendant's arguments to the contrary. In any event, any error regarding the supplemental charge was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 1975 ).
The court properly exercised its discretion in denying defendant's mistrial motion, based on the prosecutor's crude attempt at a joke during summation. The court struck the comment, which was unlikely to have been taken literally by the jury or to have caused any prejudice. By failing to object, by making generalized objections, and by failing to request further relief after objections were sustained, defendant failed to preserve any other challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we find that although some of the comments were better left unsaid, there is no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 1st Dept.1997, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 1998; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 1st Dept.1992, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 1993 ).