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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Mitchell D. PHILLIPS, Defendant-Appellant.

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. Howard K. Broder, Rochester, for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of assault in the third degree as a hate crime (Penal Law § 120.00[1];  § 480.05[1][b] ).  Contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence,” great deference is accorded to the factfinder's resolution of credibility issues (People v. Harris, 15 A.D.3d 966, 967, 788 N.Y.S.2d 745, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Gritzke, 292 A.D.2d 805, 805-806, 738 N.Y.S.2d 643, lv. denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4).   Thus, although a different result would not have been unreasonable, we conclude that the jury did not fail to give the evidence the weight it should be accorded (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 We agree with defendant, however, that County Court committed reversible error in charging the jury that defendant had a duty to retreat if safely able to do so.   Although defendant failed to object to the charge and therefore failed to preserve that contention for our review (see People v. Folger, 292 A.D.2d 841, 842, 740 N.Y.S.2d 740, lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 464, 774 N.E.2d 229;  see generally People v. Robinson, 88 N.Y.2d 1001, 648 N.Y.S.2d 869, 671 N.E.2d 1266), we nevertheless exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Here, “the justification defense was a critical component of the trial” (People v. Feuer, 11 A.D.3d 633, 634, 782 N.Y.S.2d 858), and the court's charge, even when viewed in its entirety, is not a “ ‘correct statement of the law’ ” (People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979).   It is clear that the jury must determine whether a defendant could have retreated with complete safety only when a defendant uses deadly physical force (see Penal Law § 35.15[2][a];  Matter of Y.K., 87 N.Y.2d 430, 433, 639 N.Y.S.2d 1001, 663 N.E.2d 313), and it is undisputed that defendant herein did not use deadly physical force.   Therefore, viewing the evidence in the light most favorable to defendant, as we must when reviewing the adequacy of the court's charge (see generally People v. Aiken, 4 N.Y.3d 324, 326 n. 1, 795 N.Y.S.2d 158, 828 N.E.2d 74;  People v. Padgett, 60 N.Y.2d 142, 144, 468 N.Y.S.2d 854, 456 N.E.2d 795), we conclude that the court's charge left the jury with no choice but to reject the justification defense, inasmuch as the evidence established that defendant did not retreat although he could have done so with complete safety.

We have reviewed defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed as a matter of discretion in the interest of justice and on the law and a new trial is granted.