PEOPLE v. WILT (2005)

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered September 5, 2003, upon a verdict convicting defendant of the crime of assault in the first degree.

Defendant was charged by indictment with two counts of assault in the first degree, stemming from an encounter in a cemetery late one evening between the victim and defendant, who was then 16 years old.   After a brief verbal exchange, defendant stabbed the victim in the chest with a knife and fled.   Following a jury trial, at which he admitted stabbing the victim, but maintained that he had acted in self-defense because he believed that the victim had a gun and was trying to rob him, defendant was convicted of one count of assault in the first degree.   Defendant was later sentenced to a term of 18 years in prison, and now appeals.

 Defendant first contends that the trial evidence was legally insufficient to disprove his defense of justification, citing inconsistencies in the testimony of the People's witnesses making them unworthy of belief.   We note, “[h]owever, [that] resolution of issues of credibility ․ are primarily questions to be determined by the jury, which saw and heard the witnesses” (People v. Hernandez, 288 A.D.2d 489, 490, 733 N.Y.S.2d 886 [2001], lv. denied 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159 [2002];  see People v. Williams, 291 A.D.2d 897, 898, 737 N.Y.S.2d 737 [2002], lv. denied 97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370 [2002] ).   Finding no reason to disturb the jury's resolution of the credibility of the witnesses on this record, we conclude that the evidence is legally sufficient to disprove the defense of justification and, when given the weight it should be accorded, supports the verdict (see People v. Mothon, 284 A.D.2d 568, 570, 729 N.Y.S.2d 541 [2001], lv. denied 96 N.Y.2d 865, 730 N.Y.S.2d 40, 754 N.E.2d 1123 [2001] ).

 Defendant also argues that he was denied the effective assistance of counsel because his trial counsel, who was substituted three weeks before trial, failed to more fully prepare for trial, delve further into the questionable backgrounds of the People's witnesses and more strenuously assert his claim of self-defense.   We disagree.   All discovery was complete when counsel was assigned and she vigorously cross-examined the People's witnesses, explored their criminal histories as well as their drug use and highlighted inconsistencies in their present and prior statements.   Counsel also cogently focused on the circumstances supporting the justification defense.   Thus, defendant has failed to show that counsel's trial advocacy was deficient or afforded him less than meaningful representation (see e.g. People v. Damphier, 13 A.D.3d 663, 664, 787 N.Y.S.2d 131 [2004] ).

 Next, the claim of prosecutorial misconduct during summation, when the prosecutor referred to the circumstances leading up to the crime as “strange” and “bizarre,” and to defendant as a “devil worshiper,” is unpreserved for our review, as no objection was raised at trial (see CPL 470.05[2];  People v. Ruiz, 8 A.D.3d 831, 832, 778 N.Y.S.2d 559 [2004], lv. denied 3 N.Y.3d 711, 785 N.Y.S.2d 39, 818 N.E.2d 681 [2004];  People v. Jenkins, 300 A.D.2d 751, 753, 751 N.Y.S.2d 648 [2002], lv. denied 99 N.Y.2d 615, 757 N.Y.S.2d 826, 787 N.E.2d 1172 [2003] ).   In any event, while we do not condone the prosecutor's characterizations, they were not so pervasive or egregious as to deprive defendant of a fair trial (see People v. Erwin, 236 A.D.2d 787, 787, 653 N.Y.S.2d 990 [1997], lv. denied 89 N.Y.2d 1011, 658 N.Y.S.2d 249, 680 N.E.2d 623;  People v. Johnson, 213 A.D.2d 791, 795, 623 N.Y.S.2d 418 [1995], lv. denied 85 N.Y.2d 975, 629 N.Y.S.2d 735, 653 N.E.2d 631 [1995] ).

 We are, however, persuaded that the particular circumstances of this case warrant reduction of defendant's sentence, in the interest of justice, to a prison term of eight years (see CPL 470.15[6][b];  470.20 [6];  Penal Law § 70.02[1][a];  [3][a];  see e.g. People v. Strawbridge, 299 A.D.2d 584, 594, 751 N.Y.S.2d 606 [2002], lvs. denied 99 N.Y.2d 632, 760 N.Y.S.2d 114, 790 N.E.2d 288 [2003], 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359 [2003] ).   In so doing, we have considered several mitigating factors, including defendant's youth, his lack of any criminal history, and his documented impaired emotional and mental health (see CPL 390.30;  People v. Nickel, 14 A.D.3d 869, 872, 788 N.Y.S.2d 274 [2005];  People v. Mendoza, 300 A.D.2d 824, 825, 752 N.Y.S.2d 437 [2002], lv. denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003] ).

Finally, defendant's unpreserved challenge to the racial composition of the jury panel cannot be reviewed on this record (see CPL 270.10[2] ).

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed to a prison term of eight years, and, as so modified, affirmed.

ROSE, J.

MERCURE, J.P., PETERS, SPAIN and CARPINELLO, JJ., concur.