PEOPLE v. MIAL (2022)

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). At a jury trial, the complainant testified that she and defendant, who were roommates, got into a verbal altercation and that defendant “got in her face.” The complainant further testified that she pushed defendant and then went into her own bedroom, but that defendant followed the complainant into her bedroom and began to beat the complainant about the face and head. As a result, the complainant was taken to the hospital by ambulance, where she was treated for injuries to her head and shoulder. The complainant also testified that she suffered from headaches and was unable to use her arm for two months, that she was unable to work for a week, and that she was in considerable pain for which she took medication. Defendant testified that she was not the initial aggressor and that it was the complainant, who is bigger and stronger than defendant, who attacked her.

The court instructed the jury on the defense of justification, stating, among other things, that defendant would not have been justified if she had provoked the complainant. The jury found defendant guilty of assault in the third degree.

Defendant's contention that the justification charge was improper is not preserved for appellate review (see CPL 470.05 [2]). In any event, a person may not use physical force upon another to defend herself when she is the initial aggressor (see Penal Law § 35.15 [1] [b]; People v Petty, 7 NY3d 277, 284-285 [2006]). Contrary to defendant's further contention, we find that the Criminal Court did not commit reversible error by failing to charge that, for purposes of her justification defense, she was under no duty to retreat. We note that even if that was error, it was harmless (see People v Crimmins, 36 NY2d 230 [1975]).

Defendant's contention that the People failed to disprove her justification defense by legally sufficient evidence is likewise unpreserved for appellate review (see CPL 470.05 [2]; People v Grey, 282 AD2d 544 [2001]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that the evidence was legally sufficient to disprove the justification defense (see Penal Law §§ 35.00, 35.15) beyond a reasonable doubt (see Penal Law § 25.00 [1]). Additionally, there is no basis to disturb the jury's credibility determinations, which implicitly credited the testimony of the victim. The evidence warranted the conclusion that defendant was the aggressor in the altercation (see People v Gaillard, 162 AD3d 1205 [2018]). Consequently, we find that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).

Defendant's remaining contentions are either without merit or unpreserved for appellate review.

Accordingly, the judgment of conviction is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.