Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered March 15, 2007, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, ANITA R. FLORIO and ARIEL E. BELEN, JJ.
ORDERED that the judgment is affirmed.
The defendant's conviction of assault in the second degree arose from an incident in which his girlfriend, the complainant, was injured due to the defendant's operation of her truck following a heated argument between them. According to the complainant, the defendant attempted to drive away in her truck after pushing her out of the vehicle. This prompted her to open the driver's door and hold on to the arm rest in an attempt to get back into the vehicle. The defendant then drove the truck for a significant distance with the complainant hanging on the outside, swerved in apparent attempts to throw her off, sideswiped a parked automobile, and ultimately jumped a curb and crashed into a tree and a fence. The defendant then fled the scene on foot. The complainant was thrown from the truck and suffered numerous injuries, including a fractured hip.
According to the defendant's account of the incident, he and the complainant had been arguing and then they made a brief stop at a convenience store. When he left the store, he got in the driver's seat of the truck while the complainant was still outside. He claimed that another man then opened the front passenger door, brandished a gun, and robbed him of $25,000 to $30,000, which he had made selling drugs, as well as a gold and diamond chain he was wearing. Insisting that he feared the robber would shoot him, the defendant testified that he ducked down, put the vehicle into drive, and stepped on the accelerator. He did not see the complainant. However, the truck did not move straight ahead, but instead swerved and almost immediately struck a parked car before colliding with a tree. The defendant realized that the complainant had reached in through the driver's window and had grabbed the steering wheel, thereby causing the accident.
Following the trial court's submission, in the alternative, of the offense of intentional assault in the first degree and the lesser-included offense of reckless assault in the second degree, the jury convicted the defendant of the latter.
Contrary to the defendant's contention, the trial court properly submitted the lesser- included offense of reckless assault in the second degree to the jury over his objection, since there was a reasonable view of the evidence which would support a finding that the defendant committed that crime but not the greater offense of assault in the first degree (see CPL 300.50; People v Glover, 57 NY2d 61, 63; People v Green, 56 NY2d 427, 435). Indeed, the jury could have believed from the complainant's testimony that the defendant's objective was not to seriously injure the complainant (see Penal Law § 120.10), but to shake her off the vehicle by operating the truck in a reckless manner which ultimately injured her (see Penal Law § 120.05).
The defendant's contention that the trial court should have instructed the jury with regard to the defense of justification under Penal Law § 35.15 is unpreserved for appellate review, since he never requested such a charge (see CPL 470.05; People v Harrell, 59 NY2d 620; People v White, 305 AD2d 616). Moreover, the trial court was under no obligation to give the charge, sua sponte, under the circumstances of this case (see People v Castano, 236 AD2d 215), nor did a reasonable view of the defendant's trial testimony support the submission of such a defense. Indeed, insofar as is relevant to this appeal, Penal Law § 35.15 generally provides that a person may use physical force or deadly physical force upon another person when he or she reasonably believes that such force is being used or is about to be used against him. However, the defendant never sought to establish during his testimony that his actions which caused the complainant's injuries were justified. Rather, his defense was that the complainant was the sole cause of her own injuries, since she suddenly reached into the vehicle, grabbed the steering wheel, and immediately caused the collision. In sum, the defendant's trial defense to the assault charges was that the complainant injured herself, not that his conduct in endangering her was justified; thus, a justification charge pursuant to Penal Law § 35.15 would not have been warranted under the circumstances even if it had been requested, and there is no reasonable possibility that it would have resulted in an acquittal if it had been given.
Furthermore, we do not join in our dissenting colleague's conclusion that the distinct "choice of evils" justification defense set forth in Penal Law § 35.05(2) is applicable to this case (see generally People v Maher, 79 NY2d 978). This issue is not only unpreserved, since it was never raised at the trial level, but it also is not properly before us at present, since it was never raised by the defendant on this appeal and, therefore, is beyond this Court's jurisdiction and power of review. Rather, it has been advanced for the first time in this case by the dissent, without any opportunity for the trial court to analyze it or for the prosecution to present any factual and legal arguments with regard to its purported applicability to this matter. Moreover, even if we could consider the merits of this entirely new issue, we would be particularly disinclined to do so in this matter. Indeed, given the overall strength and logical consistency of the prosecution's evidence, the highly suspect version of events testified to by the defendant, and the eminently fair trial which the defendant received, consideration of this issue clearly would be unwarranted on this appeal.
The defendant's contention that he was denied the effective assistance of trial counsel is similarly unavailing. Viewing the record of the trial proceedings in its totality, it is clear that the defendant was afforded meaningful representation (see People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137). Trial counsel engaged in searching cross-examination, presented a viable defense to the charged crimes, made appropriate motions on the defendant's behalf, and presented a cogent summation argument to the jury. These efforts resulted in the defendant's acquittal of the two most serious of the three charges against him--assault in the first degree and attempted robbery in the first degree--despite the strength of the prosecution's proof (see People v Ennis, 11 NY3d 403, 412). Additionally, while in a rare case a single omission by counsel may suffice to constitute ineffective assistance (see People v Caban, 5 NY3d 143, 152; People v Hobot, 84 NY2d 1021, 1022), trial counsel's failure to request a justification charge pursuant to Penal Law § 35.15 in this case falls short of constituting such an error. Rather, as previously noted, such a defense was not supported by a reasonable view of the evidence, since the proffered defense, based on the defendant's own account, was that the complainant was responsible for her own injuries due to her recklessness in grabbing the steering wheel and causing the accident while the defendant ducked down and attempted to drive away from the alleged robber. Accordingly, trial counsel can hardly be faulted for failing to request an instruction which did not apply to the evidence in the case, since such a request would have had little or no chance of success (see People v Stultz, 2 NY3d 277, 287; People v Taylor, 60 AD3d 708, 709; People v Sanabria, 52 AD3d 743, 744-745).
In addition to the foregoing legal explanation for counsel's decision not to request a Penal Law § 35.15 justification defense charge, the defendant and the dissent overlook the obvious strategic explanation for that decision. Since the defendant had advanced the defense that the complainant's injuries had resulted from her own reckless conduct, it would be manifestly inconsistent for counsel to simultaneously argue in the alternative that they resulted from the defendant's actions, albeit justifiable, in consciously exposing the complainant to danger. Certainly, a defendant is free to present such alternative defenses at trial, but he is not compelled to do so, especially where the logical inconsistency between those defenses necessarily detracts from the credibility and potential persuasiveness of each. Accordingly, even if, as a theoretical matter, a justification charge could have applied to the evidence presented at trial, counsel's strategic election not to pursue it was consistent with her client's testimony, and it avoided presenting to the jury two dramatically inconsistent defenses (i.e., that the accident was the complainant's fault, or that the accident was the defendant's fault but he was ...