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

The PEOPLE, etc., respondent, v. Taino AYALA, appellant.

Decided: May 29, 2007

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, PETER B. SKELOS, and WILLIAM E. McCARTHY, JJ. Salvatore C. Adamo, New York, N.Y., for appellant, and appellant pro se. Kevin L. Wright, District Attorney, Carmel, N.Y. (Christopher York of counsel;  Bradford White on the brief), for respondent.

Appeal by the defendant from a judgment of the County Court, Putnam County (Miller, J.), rendered July 16, 2003, convicting him of attempted murder in the second degree, assault in the first degree, assault in the second degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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.   Moreover, 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, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mustafa, 132 A.D.2d 628, 629, 517 N.Y.S.2d 781).

The defendant's contention that the court erred in failing to instruct the jury that “combat by agreement” is an exception to the duty to retreat, a duty generally required to be discharged in order to establish the defense of justification, is unpreserved for appellate review (see CPL 470.05[2];  People v. Moultrie, 6 A.D.3d 730, 775 N.Y.S.2d 555) and, in any event, is without merit (see Penal Law § 35.15[1][c]; [2];  People v. Young, 33 A.D.3d 1120, 1124, 825 N.Y.S.2d 147;  People v. Rosario, 292 A.D.2d 324, 324-325, 740 N.Y.S.2d 23;  see also Matter of Kim H., 112 A.D.2d 160, 161, 491 N.Y.S.2d 64).

The record does not support the defendant's claim of ineffective assistance of counsel (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions raised in his supplemental pro se brief regarding a statement he made to law enforcement officials before being given his Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), the propriety of the People's opening statement and summation, the forensic report, and an alleged Sandoval violation (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), are unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, are without merit.

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