People v Johnson
2010 NY Slip Op 05874 [75 AD3d 426]
July 1, 2010
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, September 1, 2010

The People of the State of New York, Respondent,
Robert Johnson, Appellant.

[*1] Stanley Neustadter, Cardozo Appeals Clinic, New York (Jeremy M. Gutman of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered June 9, 2008, as amended July 21, 2008, convicting defendant, after a jury trial, of attempted robbery in the second degree, criminal mischief in the fourth degree and two counts of assault in the third degree, and sentencing him, as a second felony offender, to an aggregate term of three years, unanimously affirmed.

The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. We do not find the testimony of the prosecution witnesses to be materially inconsistent.

Defendant did not preserve his claim that the court should have instructed the jury on the defense of justification, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. At the charge conference, defense counsel made it clear that she was not requesting a justification charge. A sua sponte justification charge would have improperly interfered with defense strategy since "a defendant unquestionably has the right to chart his own defense" (People v DeGina, 72 NY2d 768, 776 [1988]). The record fails to support defendant's present assertion that trial counsel "pursued" a justification defense; on the contrary, the principal lines of defense were that the incident was a dispute rather than an attempted robbery, and that there was a lack of proof of certain elements of assault and criminal mischief. In any event, a justification charge would not have been supported by a reasonable view of the evidence.

Defendant's claim that his trial counsel rendered ineffective assistance by failing to [*2]request a justification instruction is unreviewable on direct appeal because it involves matters of strategy outside the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Concur—Mazzarelli, J.P., Renwick, Freedman, Richter and Abdus-Salaam, JJ.