People v. Hart

298 A.D.2d 119, 747 N.Y.S.2d 379, 2002 N.Y. App. Div. LEXIS 9176

Opinion

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered February 16, 2001, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of six years, unanimously affirmed.

Defendant’s challenges to the court’s justification charge 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 correctly included an instruction on the duty to retreat (see People v Hernandez, 98 NY2d 175) and sufficiently instructed the jurors to consider the subjective factors involved in the circumstances facing the defendant at the time of the assault.

We would note that the area where the complaining witness was assaulted was not under defendant’s exclusive possession and control, a necessary predicate to fall within the statutory definition of “dwelling.” Concur — Nardelli, J.P., Buckley, Ellerin, Rubin and Friedman, JJ.