Opinion
2003583QCR
Decided December 9, 2004.
Appeal by defendant from a judgment of the Criminal Court, Queens County (M. Aloise, J.), rendered April 2, 2003, convicting him, after a jury trial, of assault in the third degree (Penal Law § 120.00) and harassment in the second degree (Penal Law § 240.26), and imposing sentence.
Judgment of conviction affirmed.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
Defendant's contention that the trial court's charge was erroneous is unpreserved for appellate review ( see CPL 470.05; People v. Swaby, 8 AD3d 591; People v. Suphal, 7 AD3d 547; People v. Brunson, 1 AD3d 375;
People v. Ramos, 168 AD2d 518) and we decline to reach it in the exercise of our interest of justice jurisdiction.
Pesce, P.J., and Aronin, J., concur.
Patterson, J., dissents in a separate memorandum.
Patterson, J. dissents and votes to reverse the conviction and dismiss the accusatory instrument in the following memorandum:
Although defendant failed to object to the court's decision to instruct the jury with respect to provocation, I believe this court should exercise its discretion and review the propriety of the charge in the interest of justice ( see CPL 470.15 [c]).
The commentary to the Pattern Criminal Jury Instructions states that the provocation charge should rarely be given because it is only applicable if the People satisfied their burden of producing sufficient evidence to establish that the defendant "'provoked' the attack upon himself with the premeditated purpose of responding with physical force" (CJI [NY] 35.00, at 845). Thus, the court erred in giving the provocation charge, inasmuch as the evidence proffered by the People did not establish that the defendant initiated a verbal quarrel with the victim while having a premeditated intent to cause the victim to attack him so that he could respond with physical force ( see People v. Baez, 118 AD2d 507; cf. People v. Cuthbertson, 177 AD2d 361). As a result, I would reverse the judgment of conviction and because defendant served his sentence, I would dismiss the accusatory instrument ( see People v. Burwell, 53 NY2d 849).