Opinion
1661
September 26, 2002.
Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered April 12, 2000, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 15 years, unanimously affirmed.
FRANK GLASER, for respondent.
JOHN S. ESPOSITO, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Ellerin, Rubin, Friedman, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility. Evidence properly credited by the jury disproved defendant's justification defense beyond a reasonable doubt.
Since defendant's request to charge involved a different aspect of the justification defense than did the portion of the court's charge challenged on appeal, his request to charge, and his subsequent exception to the court's failure to charge as requested, did not preserve his current claims (see People v. Hoke, 62 N.Y.2d 1022; see also People v. Whalen, 59 N.Y.2d 273, 280), and we decline to review them in the interest of justice. Were we to review these claims, we would find that the justification charge, read in context of the trial evidence, fairly explained the concept of "initial aggressor" under Penal Law § 35.15(1)(b).
By failing to object, by making generalized objections, and by failing to request further relief after objections were sustained, defendant failed to preserve his various claims of prosecutorial misconduct and we decline to review them in the interest of justice. Were we to review these claims, we would find no basis for reversal (see People v. Savage, 50 N.Y.2d 673, cert denied 449 U.S. 1016; People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.