People v Fuller

People v Fuller 2013 NY Slip Op 07813 Decided on November 21, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 21, 2013
Gonzalez, P.J., Tom, Renwick, Freedman, Clark, JJ.
11148 1113/11

[*1]The People of the State of New York, Respondent,

v

Oscar Fuller, Defendant-Appellant.




Mischel & Horn, P.C., New York (Richard E. Mischel of
counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Timothy C.
Stone of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered June 22, 2012, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a term of one year, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

Defendant did not preserve his claim that the evidence was legally insufficient to disprove his justification defense and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Moreover, we find that the evidence was overwhelming. There is no basis for disturbing the jury's credibility determinations. The testimony of numerous witnesses, most of whom were disinterested bystanders, completely refuted defendant's justification defense.

The evidentiary rulings challenged by defendant were proper exercises of the court's discretion that weighed appropriate considerations of probative value and prejudicial effect. To the extent that any of these rulings could be viewed as erroneous, we find them harmless (see People v Crimmins, 36 NY2d 230 [1975]).

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal [*2](see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 21, 2013

CLERK