People v. Cheeks

Judgment unanimously affirmed. Memorandum: Although we agree that the trial court erred in its charge on the issue of intent (see People v O’Neill, 59 AD2d 540, 542) and that subsequent to its initial proper charge on the defense of justification (Penal Law, § 35.15, subd 2, par [a]) the court’s further statements on that issue were misleading, neither of those points was preserved for review (People v Fonseca, 36 NY2d 133; CPL 470.05). Additionally, while the court’s determination to charge a lesser degree of assault was not made until after defendant’s summation (see People v Graham, 57 AD2d 478, 481, affd 44 NY2d 768), the error thus committed was harmless beyond a reasonable doubt (People v Crimmins, 36 NY2d 230). The theory of the defense was justification and it may not be 1022 said, on the facts of this case, that the defendant was denied his right to an effective summation (People v Vicaretti, 54 AD2d 236, 250; see, also, People v Chapman, 60 AD2d 584). In view of the overwhelming proof of defendant’s guilt, we are not moved to reverse in the interests of justice (see People v Jones, 32 AD2d 1069, 1070, affd 27 NY2d 501). (Appeal from judgment of Monroe County Court—assault, first degree.) Present—Cardamone, J. P., Dillon, Hancock, Jr., Schnepp and Witmer, JJ.