People v. Russo

Feb 10, 2004
Versions:4 A.D.3d 133
771 N.Y.S.2d 345
2004 N.Y. App. Div. LEXIS 1216

Judgment, Supreme Court, New York County (Harold Roth-wax, J.), rendered November 29, 1995, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a second violent felony offender, to a term of l1!2 to 15 years, and order, same court (James Yates, J.), entered on or about April 18, 2001, which denied defendant’s motion to vacate the judgment pursuant to CPL 440.10, unanimously affirmed.

Defendant received effective assistance of counsel (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Although counsel made reasonable efforts to establish a justification defense, the court nevertheless properly declined to submit that defense to the jury since the evidence fell short of creating a reasonable view warranting such a charge. Counsel presented a plausible defense of lack of intent to cause serious physical injury, and such defense was not undermined by the fact that counsel had mentioned a justification defense in his opening statement (see People v Benevento, 91 NY2d at 714-715; People v Hobot, 84 NY2d 1021, 1024 [1995]).

We perceive no basis for reducing the sentence.

We have considered and rejected defendant’s remaining claims, including those contained in his pro se supplemental brief. Concur—Tom, J.P., Andrias, Sullivan and Lerner, JJ.