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.
Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, Feinman, JJ.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered June 5, 2009, convicting defendant, after a jury trial, of attempted assault in the first degree and three counts of assault in the second degree, and sentencing him to an aggregate term of 3½ years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). There is no basis for disturbing the jury's determinations concerning credibility of witnesses, intent and accessorial liability.
The court properly exercised its discretion in instructing the jury that it should not consider self-defense or justification. Although there was evidence supporting a justification charge, and the court had agreed to deliver one, both defendant and his jointly tried co-defendant expressly withdrew their requests for such a charge. The court reasonably anticipated, given the evidence and the parties' arguments, that the jury might speculate about such a defense (see People v Rodriguez, 52 AD3d 399 [1st Dept 2008], lv denied 11 NY3d 834 ). Defendant did not preserve his claim that the language of the challenged instruction undermined his lack-of-intent defense and was otherwise prejudicial, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits.
Defendant's remaining argument is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 6, 2012
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