Opinion
2018–12018 Ind. No. 16–00312
02-17-2021
The PEOPLE, etc., respondent, v. Noe Lopez SUCHITE, appellant.
John R. Lewis, Sleepy Hollow, NY, for appellant. Thomas E. Walsh II, District Attorney, New City, N.Y. (Marissa L. Licata and Jacob B. Sher of counsel), for respondent.
John R. Lewis, Sleepy Hollow, NY, for appellant.
Thomas E. Walsh II, District Attorney, New City, N.Y. (Marissa L. Licata and Jacob B. Sher of counsel), for respondent.
REINALDO E. RIVERA, J.P., COLLEEN D. DUFFY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Rockland County (David S. Zuckerman, J.), rendered November 6, 2017, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the trial court properly refused to instruct the jury on the defense of justification. "A person is justified in using deadly force against another if he or she reasonably believes such to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force by such other person" ( People v. Taylor, 150 A.D.3d 768, 769, 53 N.Y.S.3d 702 [internal quotation marks omitted]; see Penal Law § 35.15[2][a] ). Here, viewing the record in the light most favorable to the defendant (see People v. Sparks, 29 N.Y.3d 932, 934, 51 N.Y.S.3d 14, 73 N.E.3d 354 ), there is no reasonable view of the evidence that would have permitted the factfinder to conclude that the defendant's use of deadly physical force was justified (see People v. Taylor, 150 A.D.3d at 769, 53 N.Y.S.3d 702 ; People v. Heron, 130 A.D.3d 754, 755, 13 N.Y.S.3d 243 ).
The defendant contends that his counsel was ineffective for failing to request an adverse inference charge based upon the People's failure to proffer video evidence from a security camera allegedly located in the area of the subject incident. However, because the record does not establish that the police or the prosecution were ever in possession of such alleged video evidence, the defendant was not entitled to an adverse inference charge (see People v. Robinson, 143 A.D.3d 744, 38 N.Y.S.3d 601 ; People v. Rivera, 126 A.D.3d 818, 819, 6 N.Y.S.3d 75 ). Therefore, counsel was not ineffective for failing to request the charge (see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ).
RIVERA, J.P., DUFFY, IANNACCI and WOOTEN, JJ., concur.