People v. Rodriguez

186 A.D.2d 355, 588 N.Y.S.2d 772, 1992 N.Y. App. Div. LEXIS 11054

Opinion

— Judgment, Supreme Court, Bronx County (Joseph Cerbone, J., at trial and sentence), rendered July 5, 1990, convicting defendant of assault in the first degree, and sentencing him to a term of imprisonment of 5 to 15 years, unanimously affirmed.

Armed with a baseball bat, defendant repeatedly beat the victim in the head because he had been dating the defendant’s common law wife. When he stopped his attack he declared, "Next time I’ll kill you,” and then ran off, pursued by responding police officers. As a result of the attack, the victim is now totally incapacitated.

At trial, defendant claimed justification, alleging that the victim had a knife, but none was found or observed. We reject as unpreserved defendant’s claims that the trial court erred in failing to charge mere "physical force” as well as "deadly physical force” and that the prejudicial comments of the prosecutor in questioning and in summation require reversal. Given the overwhelming proof of guilt, we decline to exercise our discretion to reach such claims in the interest of justice. Concur — Sullivan, J. P., Milonas, Ellerin and Kassal, JJ.