Opinion
No. 201 SSM 32.
Decided September 2, 2010.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that Court, entered October 6, 2009. The Appellate Division affirmed a judgment of the Supreme Court, Kings County (Alan D. Marrus, J.), which had convicted defendant, upon a jury verdict, of assault in the second degree.
The defendant's conviction arose from an incident in which his girlfriend, the complainant, was injured due to the defendant's operation of her truck following a heated argument between them. According to the complainant, the defendant attempted to drive away in her truck after pushing her out of the vehicle. This prompted her to open the driver's door and hold on to the arm rest in an attempt to get back into the vehicle. The defendant then drove the truck for a significant distance with the complainant hanging on the outside, swerved in apparent attempts to throw her off, sideswiped a parked automobile, and ultimately jumped a curb and crashed into a tree and a fence. The defendant then fled the scene on foot. The complainant was thrown from the truck and suffered numerous injuries, including a fractured hip. According to the defendant's account of the incident, he and the complainant had been arguing and then they made a brief stop at a convenience store. When he left the store, he got in the driver's seat of the truck while the complainant was still outside. He claimed that another man then opened the front passenger door, brandished a gun, and robbed him. Insisting that he feared the robber would shoot him, the defendant testified that he ducked down, put the vehicle into drive, and stepped on the accelerator. He did not see the complainant. However, the truck did not move straight ahead, but instead swerved and almost immediately struck a parked car before colliding with a tree. The defendant realized that the complainant had reached in through the driver's window and had grabbed the steering wheel, thereby causing the accident. Following the trial court's submission, in the alternative, of the offense of intentional assault in the first degree and the lesser-included offense of reckless assault in the second degree, the jury convicted the defendant of the latter.
People v Moore, 66 AD3d 707, affirmed.
Appellate Advocates, New York City ( De Nice Powell and Lynn W.L. Fahey of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn ( Solomon Neubort of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
MEMORANDUM .
The order of the Appellate Division should be affirmed. Defendant Isham Moore failed to establish that his attorney provided ineffective assistance because of her failure to request a justification charge. There are sound strategic reasons for counsel's decision not to request such a charge. And even if this were not the case, defendant cannot show that he was entitled to a justification charge under any favorable interpretation of the testimony presented are trial.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, in a memorandum.