Robert C. Mitchell, Riverhead, N.Y. (John M. Dowden of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.
PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, SYLVIA HINDS-RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Crecca, J.), rendered December 1, 2010, convicting him of assault in the third degree, menacing in the third degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the County Court should have instructed the jury with regard to the defense of justification under Penal Law § 35.05(2) is unpreserved for appellate review, since he never requested such a charge and he did not object to the charge given (see CPL 470.05; People v Harrell, 59 N.Y.2d 620, 622; People v Khan, 89 A.D.3d 750, 751; People v Jenkins, 81 A.D.3d 662). In any event, there was no reasonable view of the evidence that would have supported a justification charge relative to any of the crimes of which the defendant was convicted, since, under the defendant's version of the events, he did not engage in conduct that was justified under the choice-of-evils theory of justification (see People v Rodriguez, 16 N.Y.3d 341, 345).
The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review (see CPL 470.05; People v Hawkins, 11 N.Y.3d 484). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of assault in the third degree, menacing in the third degree, and endangering the welfare of a child beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348; People v Romero, 7 N.Y.3d 633).
Contrary to the defendant's contention, the County Court's interested witness charge, which followed the New York Pattern Jury Instructions, was not unbalanced (see People v Piedra, 87 A.D.3d 706, 707; People v Williams, 81 A.D.3d 993, 994; People v Campbell, 68 A.D.3d 890, 891; People v Dixon, 63 A.D.3d 854, 855; People v Brokenbough, 52 A.D.3d 525, 525; People v Varughese, 21 A.D.3d 1126, 1128; People v McCray, 204 A.D.2d 490, 491).
We agree with the defendant that the County Court erred in allowing the prosecution, over the defendant's objection, to impeach the defendant's testimony with his failure to come forward to the police with an exculpatory version of the events, and in allowing the People to comment upon the defendant's post-arrest silence in summation (see People v McArthur, 101 A.D.3d 752, 753; People v Tucker, 87 A.D.3d 1077, 1079). However, since the evidence of the defendant's guilt was overwhelming, and there was no reasonable ...