PEOPLE v. OJAR (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered March 24, 2006, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 A person is justified in using deadly force against another if he or she reasonably believes such to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force by such other person (see Penal Law 35.15[2];  People v. Candelaria, 206 A.D.2d 385, 614 N.Y.S.2d 432).  “A court need not charge the defense of justification if, considering the record in the light most favorable to the defendant, no reasonable view of the evidence supports it” (People v. Bennett, 279 A.D.2d 585, 719 N.Y.S.2d 281, citing People v. Reynoso, 73 N.Y.2d 816, 537 N.Y.S.2d 113, 534 N.E.2d 30).

In the instant case, the defendant testified that he did not intend to stab the complainant, thus undercutting his reliance on a justification defense with respect to the count alleging assault in the first degree (cf. People v. Montana, 192 A.D.2d 623, 596 N.Y.S.2d 154;  People v. Ludwig, 155 A.D.2d 558, 547 N.Y.S.2d 414).   Moreover, the defendant failed to adduce any testimony demonstrating that the complainant was about to use deadly force against him.   In fact, the defendant did not dispute that the complainant was unarmed.   In addition, justification based on self-defense does not apply to a crime based on possession of a weapon (see People v. Thomas, 232 A.D.2d 667, 649 N.Y.S.2d 454).   Therefore, the Supreme Court properly denied the defendant's request to charge the jury regarding the justification defense.

 The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Bynum, 70 N.Y.2d 858, 859, 523 N.Y.S.2d 492, 518 N.E.2d 4).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see Penal Law § 120.10[1];  People v. Barnett, 16 A.D.3d 1128, 1129, 790 N.Y.S.2d 799;  People v. Singh, 12 A.D.3d 537, 538, 785 N.Y.S.2d 466).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-45, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, supra).

The defendant's contention raised in Point Two of his brief, regarding an evidentiary ruling by the trial court, is without merit. The defendant's contention raised in Point Three of his brief, regarding alleged prosecutorial misconduct, is unpreserved for appellate review and, in any event, is without merit.