Opinion
KA 04-01998.
April 28, 2006.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered May 6, 2004. The judgment convicted defendant, upon a jury verdict, of assault in the first degree and criminal possession of a weapon in the third degree.
THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (TINA M. STANFORD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Kehoe, J.P., Gorski, Martoche, Green and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him of assault in the first degree (Penal Law § 120.10) and criminal possession of a weapon in the third degree (§ 265.02 [1]), defendant contends that he received ineffective assistance of counsel. We reject that contention. Defendant was not denied effective assistance of counsel based on defense counsel's failure to request a justification charge inasmuch as the evidence does not support such a charge ( see People v. Douglas, 160 AD2d 1015, lv denied 76 NY2d 855). Nor can it be said that defendant was denied effective assistance of counsel based on defense counsel's failure to request that assault in the third degree be charged as a lesser included offense of assault in the first degree. There is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater offense ( see generally People v. Glover, 57 NY2d 61, 63), i.e., that defendant had the intent to cause physical injury but not serious physical injury to another person.
Defendant further contends that he was denied a fair trial based on prosecutorial misconduct. Defendant failed to preserve his contention for our review with respect to the majority of the instances of alleged misconduct ( see CPL 470.05), and we decline to exercise our power to review defendant's contention with respect to those instances as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). We further conclude that the remaining instances of prosecutorial misconduct that are preserved for our review did not deprive defendant of his right to a fair trial and thus do not require reversal ( see generally People v. Matthews, 27 AD3d 1115; People v. Rubin, 101 AD2d 71, 78, lv denied 63 NY2d 711). We have reviewed defendant's remaining contentions and conclude that they are without merit.