Opinion
No. 2829 Ind. No. 1524/20 Case No. 2021-04147
10-15-2024
The People of the State of New York, Respondent, v. David Young Also Known as Raina McKenzie, Defendant-Appellant.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent.
Before: Webber, J.P., Kapnick, Kennedy, Scarpulla, Shulman, JJ.
Judgment, Supreme Court, New York County (Robert Mandelbaum, J.), rendered November 8, 2021, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing her, as a second violent felony offender, to concurrent terms of five years to be followed by five years of postrelese supervision on the assault count and 3½ to 7 years on the weapon possession count, unanimously affirmed.
The verdict was not against the weight of the evidence (People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). The evidence demonstrated that defendant was the initial aggressor of the physical encounter with the victim (see People v Gaines, 26 A.D.3d 269, 270 [1st Dept 2006], lv denied 6 N.Y.3d 847 [2006]). Regardless of who initiated the physical encounter, defendant, who could safely have retreated, was not justified in chasing the victim into a nearby parking garage and stabbing him multiple times as he lay on the ground (see Penal Law § 35.15[2][a]; People v Crique, 63 A.D.3d 566, 567 [1st Dept 2009], lv denied 13 N.Y.3d 835 [2009]). With respect to the weapon possession count, the jury was entitled to reject defendant's testimony that she believed that the victim was going into the parking garage to get a weapon (see People v Pugh, 216 A.D.3d 577, 578 [1st Dept 2023], lv denied 40 N.Y.3d 999 [2023]).
Defendant failed to preserve her claim that the verdict sheet should have instructed the jury that an acquittal of the attempted first-degree assault count based on justification also required an acquittal of second-degree assault (see People v Macon, 186 A.D.3d 430 [1st Dept 2020], lv denied 35 A.D.3d 1114 [2020]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits.
We perceive no basis for reducing the sentence.