PEOPLE v. YOUNG (2024)

Judgment, Supreme Court, New York County (Robert Mandelbaum, J.), rendered November 8, 2021, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing her, as a second violent felony offender, to concurrent terms of five years to be followed by five years of postrelese supervision on the assault count and 31/212 to 7 years on the weapon possession count, unanimously affirmed.

The verdict was not against the weight of the evidence (People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  The evidence demonstrated that defendant was the initial aggressor of the physical encounter with the victim (see People v. Gaines, 26 A.D.3d 269, 270, 812 N.Y.S.2d 11 [1st Dept. 2006], lv denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976 [2006]).  Regardless of who initiated the physical encounter, defendant, who could safely have retreated, was not justified in chasing the victim into a nearby parking garage and stabbing him multiple times as he lay on the ground (see Penal Law § 35.15[2][a];  People v. Crique, 63 A.D.3d 566, 567, 882 N.Y.S.2d 39 [1st Dept. 2009], lv denied 13 N.Y.3d 835, 890 N.Y.S.2d 451, 918 N.E.2d 966 [2009]).  With respect to the weapon possession count, the jury was entitled to reject defendant's testimony that she believed that the victim was going into the parking garage to get a weapon (see People v. Pugh, 216 A.D.3d 577, 578, 189 N.Y.S.3d 496 [1st Dept. 2023], lv denied 40 N.Y.3d 999, 197 N.Y.S.3d 106, 219 N.E.3d 867 [2023]).

Defendant failed to preserve her claim that the verdict sheet should have instructed the jury that an acquittal of the attempted first-degree assault count based on justification also required an acquittal of second-degree assault (see People v. Macon, 186 A.D.3d 430, 129 N.Y.S.3d 58 [1st Dept. 2020], lv denied 35 N.Y.3d 1114, 133 N.Y.S.3d 530, 158 N.E.3d 547 [2020]), and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.

We perceive no basis for reducing the sentence.