The People, etc., respondent, v. Diobenton Delmas, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Diobenton Delmas, appellant.

2010–09225 (Ind.No. 6329/09)

Decided: March 12, 2014

REINALDO E. RIVERA, J.P. PLUMMER E. LOTT SHERI S. ROMAN SYLVIA O. HINDS–RADIX, JJ. Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Andrew C. Gilman of counsel), for respondent.

Argued—January 30, 2014

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered September 14, 2010, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED the judgment is affirmed.

The defendant's challenge to certain portions of the charge on justification regarding the duty to retreat are unpreserved for appellate review (see CPL 470.05[2];  People v. Battle, 73 AD3d 939, 940;  People v. Fowle, 60 AD3d 691, 691;  People v. Floyd, 34 AD3d 494, 495).   In any event, the trial court's justification charge properly conveyed the correct legal standard regarding the duty to retreat (see Penal Law § 35.15[2][a];  People v. Aiken, 4 NY3d 324, 328;  People v. Jones, 3 NY3d 491, 494–495).

Since the justification charge was not improper, the defendant's ineffective assistance of counsel claim, which is based solely upon his counsel's failure to object to the charge, is without merit (see People v. McKenzie, 48 AD3d 594, 595;  People v. Stover, 36 AD3d 837, 838).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contention is without merit.

RIVERA, J.P., LOTT, ROMAN and HINDS–RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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