PEOPLE v. PEGURO (2018)

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered December 8, 2015, 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 12 years, unanimously affirmed.

Defendant's legal sufficiency claim is unpreserved, and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's determinations concerning credibility.  The evidence supports the inference that when defendant stabbed the victim in the chest he did so with intent to cause serious physical injury.

Defendant has not preserved any of his challenges to the court's charge, and we decline to review them in the interest of justice.  As an alternative holding, we find that each of the instructions at issue, when viewed as a whole, conveyed the proper standards (see generally People v. Umali, 10 N.Y.3d 417, 427, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008] ).  The court correctly instructed the jury on prior inconsistent statements, reasonable doubt and the presumption of innocence, and there was nothing in the charge that was constitutionally deficient.

Defendant's challenges to the prosecutor's summation are likewise unpreserved, and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

To the extent the record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).  Defendant has not shown that counsel's failure to object to portions of the People's summation and the court's charge fell below an objective standard of reasonableness, or that defendant was prejudiced by the lack of these objections (compare People v. Cass, 18 N.Y.3d 553, 564, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012], with People v. Fisher, 18 N.Y.3d 964, 944 N.Y.S.2d 453, 967 N.E.2d 676 [2012] ).

We perceive no basis for reducing the sentence.