Opinion
No. 2005-05981.
February 26, 2008.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered June 1, 2005, convicting her of assault in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Benjamin D. Gold of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Steven A. Mann of counsel), for respondent.
Before: Mastro, J.P., Florio, Miller and Dickerson, JJ.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see CPL 470.05; People v Gray, 86 NY2d 10, 19). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish that the defendant, and not another participant in the altercation, caused physical injury to the victim with a dangerous instrument. Moreover, upon the exercise of our factual review power ( see CPL 470.15), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero, 7 NY3d 633).
The defendant failed to preserve for appellate review her contention that she was prejudiced by the court's failure to deliver a justification charge ( see CPL 470.05; People v Ford, 78 NY2d 878; People v Kelly, 183 AD2d 784, 785). In any event, since no reasonable view of the evidence would support a finding that the defendant's actions were justified, the court was under no obligation to give a justification charge ( see People v Watts, 57 NY2d 299, 301; cf. People v Petty, 7 NY3d 277, 284; People v Fermin, 36 AD3d 934, 935). The defendant's contention that she was denied the effective assistance of trial counsel based upon her counsel's failure to request a justification charge is without merit.