PEOPLE v. SILVA (2022)

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered September 23, 2014, convicting defendant, after a jury trial, of attempted assault in the first degree, assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 10 years, unanimously affirmed.

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]).  On the contrary, the evidence, which included the corroborative testimony of an eyewitness bystander, overwhelmingly disproved defendant's justification defense.

The court properly permitted the People to impeach defendant's testimony with statements made in his presence by his counsel at arraignment.  It was a reasonable inference that defendant was the source of the statements regarding his actions before and during the stabbing of the victim (see People v. Brown, 98 N.Y.2d 226, 232–233, 746 N.Y.S.2d 422, 774 N.E.2d 186 [2002];  People v. Kallamni, 14 A.D.3d 316, 787 N.Y.S.2d 1 [1st Dept. 2005], lv denied 4 N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327 [2005];  People v. Moye, 11 A.D.3d 212, 782 N.Y.S.2d 257 [1st Dept. 2004], lv denied 4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142 [2005]).  The court later ruled that, although the line of questioning had been appropriate, the People would not be permitted to comment on it in summation because defendant denied making the statements and they were not otherwise proven.  Because defense counsel agreed to that curative action, defendant's claim that the court should then have also struck the testimony or provided a curative instruction is unpreserved (see People v. Ferguson, 137 A.D.3d 641, 642, 27 N.Y.S.3d 559 [1st Dept. 2016], 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016]), and we decline to review it in the interest of justice.  As an alternative holding, we find it unavailing.  In any event, any error was harmless.

We perceive no basis for reducing the sentence.