Opinion
2018-14612 Ind. 10480/16
10-13-2021
The People of the State of New York, respondent, v. Shawayne Legall, appellant.
Patricia Pazner, New York, NY (Michael Arthus of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
Patricia Pazner, New York, NY (Michael Arthus of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, FRANCESCA E. CONNOLLY, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered November 9, 2018, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted after a jury trial of assault in the first degree, arising out of a knife-point attack by him and an unapprehended accomplice that took place in the middle of the street. The defendant appeals.
The trial court properly denied the defendant's request for a charge on the justification defense with respect to the charge of assault in the first degree, since no reasonable view of the evidence supported such a charge (see People v Watts, 57 N.Y.2d 299, 301; People v Cotsifas, 100 A.D.3d 1015). Viewed in the light most favorable to the defendant, the evidence, which included a nearby surveillance video recording of the entire attack, was not sufficient to support a finding that the victim, rather than the defendant, was the "initial aggressor" (Penal Law § 35.15[1][b]; see People v Ilagorre, 166 A.D.3d 899, 900; People v Cotsifas, 100 A.D.3d at 1015). In any event, the defendant's use of deadly force against the victim would not have been justified since no rational view of the evidence would permit a jury to conclude that the defendant satisfied his duty to retreat (see Penal Law § 35.15[2][a]; People v Cotsifas, 100 A.D.3d at 1015-1016).
The defendant's contention that certain hearsay testimony constituted impermissible bolstering is unpreserved for appellate review (see CPL 470.05[2]; People v Chin, 148 A.D.3d 925, 926; People v Fernandez, 115 A.D.3d 977, 978), and, in any event, without merit.
The defendant was not deprived of the effective assistance of counsel (see People v Rodriguez, 31 N.Y.3d 1067, 1068; People v Walters, 172 A.D.3d 916, 917; People v Abuziyad, 136 A.D.3d 837; People v Hampton, 81 A.D.3d 974, 975).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
RIVERA, J.P., AUSTIN, CONNOLLY and FORD, JJ., concur.