August 29, 2008. Appeal from the 1st Dept: 51 AD3d 585 (NY). Graffeo, J.
The jurors had no rational basis for selectively crediting and discrediting portions of the testimony of the victims and that of defendant, but even if they did, to convict defendant of only third-degree robbery they would still have to speculate that he used some other kind of force for the purpose of taking property. There was nothing in the evidence, or any reasonable inferences therefrom, to support such an alternative scenario (seePeople v. Bonilla, 51 A.D.3d 585, 585, 860 N.Y.S.2d 16 [2008], lv denied 11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657 [2008] ; People v. Ruiz, 216 A.D.2d 63, 628 N.Y.S.2d 80 [1st Dept. 1995], affd 87 N.Y.2d 1027, 644 N.Y.S.2d 137, 666 N.E.2d 1050 [1996] ). We perceive no basis for reducing the sentence.
While claiming he accidentally shot the complainant after disarming him, defendant unequivocally testified that the complainant was unarmed and retreating when the shots were fired. Hence, even if the jury credited portions of defendant's testimony, there was nothing in the evidence to support a finding that the shooting was intentional, but justified ( see e.g. People v Bennett, 279 AD2d 585, lv denied 96 NY2d 797). To find justification, the jury would have had to "speculate as to an alternative scenario that was not supported by any evidence" ( People v Bonilla, 51 AD3d 585, 585, lv denied 11 NY3d 734). We have considered and rejected defendant's remaining arguments, including those addressed to the prosecutor's instructions to the grand jury.
It is the function of the court to assure that a defendant's guilt is proven beyond a reasonable doubt ( Steele, 26 NY2d at 528). A justification defense would not have required the jury to speculate as to a scenario unsupported by any testimony ( cf. People v Bonilla, 51 AD3d 585, lv denied 11 NY3d 734). The jury could have rejected defendant's denial of being intoxicated, particularly since it was contradicted by ample prosecution evidence, while at the same time crediting the balance of his testimony; this is not a case where "no identifiable record basis exists upon which the jury might reasonably differentiate between segments of a witness' testimony" ( People v Negron, 91 NY2d 788, 792).
The instruction was not constitutionally deficient, because it unequivocally informed the jury that the People had the burden of proving every element of the crime beyond a reasonable doubt ( see CPL 300.10; People v Bonilla, 51 AD3d 585, lv denied 11 NY3d 734). We similarly conclude that the absence of any objection to the charge by trial counsel did not deprive defendant of effective assistance.
05; People v Miller, 235 AD2d 568, 570). Further, under the circumstances of this case, there was no mode-of-proceedings error with respect to the court's charge that would exempt the defendant's argument from preservation requirements ( see People v Brown, 7 NY3d 880, 881; People v Agramonte, 87 NY2d 765, 769-770; People v Gray, 86 NY2d 10, 21; People v Patterson, 39 NY2d 288, 295; People v Bonilla, 51 AD3d 585, 585-586).