People v. Kin Wong

81 A.D.3d 421, 916 N.Y.S.2d 57

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2011
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 15, 2007, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.

Defendant did not request a charge on the defense of justification, and the court was under no obligation to deliver one sua sponte. It was clear that defense counsel was pursuing a theory that the complainant was stabbed with his own knife during a struggle over the knife, as opposed to a theory that defendant stabbed the complainant in self-defense. Regardless of whether the evidence might have supported multiple defenses, an unrequested justification charge would have improperly interfered with defendant’s strategy (see People v Johnson, 75 AD3d 426 [2010]).

Defendant’s claim that his trial counsel rendered ineffective assistance by failing to request a justification charge is unreviewable on direct appeal because it involves matters outside the record concerning counsel’s strategic choices (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Concur — Andrias, J.P., Sweeny, Moskowitz, DeGrasse and Abdus-Salaam, JJ.