People v. Martinez (Justin)

People v Martinez (2021 NY Slip Op 51215(U)) [*1] People v Martinez (Justin) 2021 NY Slip Op 51215(U) [73 Misc 3d 143(A)] Decided on December 20, 2021 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 20, 2021 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Edmead, P.J., Hagler, Silvera, JJ. 570413/19 The People of the State of New York, Respondent, against Justin Martinez, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Jeffrey Rosenbleuth, J.), rendered May 16, 2019, after a jury trial, convicting him of assault in the third degree, and imposing sentence. Per Curiam. Judgment of conviction (Jeffrey Rosenbleuth, J.), rendered May 16, 2019, affirmed. Defendant's claim that the evidence was legally insufficient to disprove his justification defense is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Issues of credibility concerning defendant's justification defense and the circumstances under which he inflicted the injuries to complainant, his father, were properly presented to the jury, which saw and heard the witnesses, and we see no reason to disturb its findings. The nature of the injuries and the surrounding circumstances provided ample evidence that defendant intended to cause physical injury when he repeatedly punched complainant with a closed fist. Contrary to defendant's contention, the complainant's account of the incident was neither unreliable nor implausible and evidence properly credited by the jury disproved defendant's justification defense beyond a reasonable doubt (see People v Petty, 7 NY3d 277 [2006]). By failing to make objections or request further relief after the court took curative action, defendant failed to preserve most of his challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, there is no basis for reversal. Taken as a whole, the bulk of the challenged remarks were either fair response to defense counsel's arguments on summation or fair comment on the evidence, and any improprieties were not so egregious as to deprive defendant of a fair trial (see People v Garland, 155 AD3d 527, 529 [2017], affd 32 NY3d 1094 [2018], cert denied 140 S. Ct. 2525 [2020]; People v Feola, 154 AD3d 638, 639 [2017], lv denied 31 NY3d 1013 [2018]). In any event, the court's curative instructions were sufficient to prevent any prejudice (see People v Overlee, 236 AD2d 133 [*2][1997], lv denied 91 NY2d 976 [1998]). Nor could the prosecutor's comments be perceived as vouching for the credibility of the complainant since those remarks were a permissible comment on a matter of credibility, and the prosecutor did not become an unsworn witness (see People v Ringer, 90 AD3d 439, 439-440 [2011], lv denied 18 NY3d 927 [2012]; People v Massie, 305 AD2d 116, 117 [2003], affd 2 NY3d 179 [2004]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: December 20, 2021