People v Dukuray

People v Dukuray 2007 NY Slip Op 04870 [41 AD3d 141] June 7, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

The People of the State of New York, Respondent,
v
Mahmadou Dukuray, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), and Clifford Chance US LLP, New York (Yasmine Lahlou of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Jean Soo Park of counsel), for respondent. Judgment, Supreme Court, Bronx County (Michael R. Sonberg, J.), rendered February 18, 2004, convicting defendant, after a jury trial, of assault in the second degree and resisting arrest, and sentencing him to an aggregate term of two years, unanimously affirmed.

Defendant's challenges to the court's charge and the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the court properly instructed the jury on all the elements of second-degree assault under Penal Law § 120.05 (3), and that the challenged summation remark was a permissible comment on the fact that the defense case did not include testimony from defendant's brother (see People v Tankleff, 84 NY2d 992, 994-995 [1994]). Concur—Tom, J.P., Saxe, Marlow, Sullivan and Williams, JJ.