People v. Kirby

Appellate Division of the Supreme Court of New York

People v. Kirby

254 A.D.2d 58, 678 N.Y.S.2d 723, 1998 N.Y. App. Div. LEXIS 10010

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 6, 1998

StatusPublished

Cited by1 cases

This text of 254 A.D.2d 58 (People v. Kirby) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kirby, 254 A.D.2d 58, 678 N.Y.S.2d 723, 1998 N.Y. App. Div. LEXIS 10010 (N.Y. Ct. App. 1998).

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Opinion

—Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered March 13, 1996, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent [59]*59felony offender, to a term of 3V2 to 7 years, unanimously affirmed.

Defendant’s contentions that the court excessively questioned witnesses, made inappropriate comments, and was biased in favor of the prosecution 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’s participation served to clarify the evidence and control the proceedings (People v Person, 251 AD2d 13). The court’s questioning did not usurp the role of the attorneys and did not convey to the jury that the court had any personal opinion concerning defendant’s guilt (supra).

The trial court properly declined to charge the jury on the defensive use of ordinary physical force, since no reasonable view of the evidence would have supported a finding that other than deadly physical force was utilized (People v Butts, 72 NY2d 746, 750; People v Mickens, 219 AD2d 543, lv denied 87 NY2d 904).

We perceive no abuse of sentencing discretion. Concur— Rosenberger, J. P., Ellerin, Wallach and Williams, JJ.

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—Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered March 13, 1996, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent [59]*59felony offender, to a term of 3V2 to 7 years, unanimously affirmed.

Defendant’s contentions that the court excessively questioned witnesses, made inappropriate comments, and was biased in favor of the prosecution 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’s participation served to clarify the evidence and control the proceedings (People v Person, 251 AD2d 13). The court’s questioning did not usurp the role of the attorneys and did not convey to the jury that the court had any personal opinion concerning defendant’s guilt (supra).

The trial court properly declined to charge the jury on the defensive use of ordinary physical force, since no reasonable view of the evidence would have supported a finding that other than deadly physical force was utilized (People v Butts, 72 NY2d 746, 750; People v Mickens, 219 AD2d 543, lv denied 87 NY2d 904).

We perceive no abuse of sentencing discretion. Concur— Rosenberger, J. P., Ellerin, Wallach and Williams, JJ.

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Bluebook (online)

254 A.D.2d 58, 678 N.Y.S.2d 723, 1998 N.Y. App. Div. LEXIS 10010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kirby-nyappdiv-1998.

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