The People of the State of New York, Respondent, v. Dewayne Richardson, Defendant–Appellant.

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

The People of the State of New York, Respondent, v. Dewayne Richardson, Defendant–Appellant.

7827

Decided: May 31, 2012

Tom, J.P., Andrias, Saxe, Moskowitz, Acosta, JJ. Cardozo Appeals Clinic, New York (Stanley Neustadter of counsel), and Hogan Lovells U.S. LLP, New York (Nathaniel S. Boyer of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (John B.F. Martin of counsel), for respondent.

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Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered December 1, 2009, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

The court properly determined that there was no reasonable view of the evidence, viewed in the light most favorable to defendant, to support the submission of a charge on the justification defense (see People v. Reynoso, 73 N.Y.2d 816 [1988];  People v. Watts, 57 N.Y.2d 299 [1982] ).   Defendant was observed repeatedly stomping the victim's head and chest with his heavy boots, while the victim was on the ground covered in blood.   Under the circumstances, defendant's boots constituted a dangerous instrument within the meaning of Penal Law § 10.00[13];  see People v. Carter, 53 N.Y.2d 113, 116–117 [1981] ), and his conduct, which caused the victim to sustain significant injuries, constituted deadly physical force within the meaning of Penal Law § 10.00(11).   Moreover, the evidence showed that defendant had an opportunity to safely retreat while the victim was lying on the ground (see People v. Taylor, 92 AD3d 556 [2012];  People v. Mayorquin, 30 AD3d 317 [2006], lv denied 7 NY3d 850 [2006] ).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK