Opinion
12917 Ind. No. 2368/17 Case No. 2019-1970
01-19-2021
The PEOPLE of the State of New York, Respondent, v. Kevin KAREEM, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jennifer Westphal of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jennifer Westphal of counsel), for respondent.
Gische, J.P., Oing, Moulton, Mendez, JJ.
Judgment, Supreme Court, New York County (Gilbert C. Hong, J.), rendered December 12, 2018, convicting defendant, after a jury trial, of attempted assault in the first degree, and sentencing him to a term of five years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations, including as to the parties' medical experts. The evidence supports the conclusion that defendant stomped on the victim's head with a boot, which constituted a dangerous instrument under the circumstances of its use, and that in doing so defendant intended to cause serious physical injury. The fact that defendant was acquitted of another charge does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).
The court correctly declined to instruct the jury on the justified use of deadly physical force, because there was no reasonable view of the evidence, viewed most favorably to defendant, to support either the objective or subjective components of that defense. All of the eyewitnesses' testimony established that during an altercation between defendant and the victim, defendant punched the victim, causing him to fall onto the sidewalk, where he remained. Any threat the victim might have initially posed to defendant was negated by the victim's evidently helpless state when he was lying on the ground and barely moving, at which point defendant committed the sole charged conduct of stomping on his head with a boot (see People v. Sparks, 132 A.D.3d 513, 514, 17 N.Y.S.3d 423 [1st Dept. 2015], affd 29 N.Y.3d 932, 51 N.Y.S.3d 14, 73 N.E.3d 354 [2017] ). Defendant did not preserve his claim that the court should have charged the jury on the justified use of nondeadly force, and we decline to review it in the interest of justice. Defendant concedes that his counsel requested only a deadly force charge, and defendant's argument that the court's ruling preserved the ordinary force argument is unsupported by the record. As an alternative holding, we find that this was not a "rare case" where defendant was "entitled to a jury instruction on the justified use of non-deadly (or ‘ordinary’) physical force, even though [he was] charged with a crime containing a dangerous instrument element" ( People v. Vega, 33 N.Y.3d 1002, 1004, 102 N.Y.S.3d 140, 125 N.E.3d 805 [2019] ).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not fully explained by the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Defendant has not shown that, given the evidence and the crimes charged, it fell below an objective standard of reasonableness when counsel did not request the submission of attempted second-degree assault as a lesser included offense (see People v. Vazquez, 103 A.D.3d 460, 462, 962 N.Y.S.2d 20 [1st Dept. 2013], lv denied 21 N.Y.3d 1046, 972 N.Y.S.2d 544, 995 N.E.2d 860 [2013] ), or did not request for a charge on the justified use of nondeadly force (see Vega, 33 N.Y.3d at 1004, 102 N.Y.S.3d 140, 125 N.E.3d 805 ), or that these alleged deficiencies deprived defendant of a fair trial or affected the outcome of the case.