Opinion
570824/03
Decided November 24, 2004.
Defendant appeals from a judgment of the Criminal Court, New York County, rendered May 8, 2003 after a jury trial (Ruth Pickholz, J.) convicting him of attempted assault in the third degree (Penal Law §§ 110.00/120.00[1]), and imposing sentence.
Judgment of conviction rendered May 8, 2003 (Ruth Pickholz, J.) affirmed.
Before: PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
The defendant's contention that the People failed to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review ( see People v. Gray, 86 NY2d 10; People v. Suphal, 7 AD3d 547) and, in any event, is lacking in merit. The People negated the essential elements of the justification defense through evidence, inter alia, that defendant repeatedly kicked the complainant in the head while the complainant was lying on the ground in a "crunch" or fetal position. Moreover, upon an independent review of the record, we are satisfied that the conviction was not against the weight of the evidence.
To the extent that defendant now assigns error to the conduct of the trial, these claims are similarly unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the court's charge as a whole conveyed the proper standards ( see People v. Cubino, 88 NY2d 998, 1000) and that the prosecution's summation remarks were fair comment on the evidence ( see People v. Overlee, 236 AD2d 133, lv denied 91 NY2d 976).
This constitutes the decision and order of the court.