People v Rkein, 2017 NY Slip Op 05678 [152 AD3d 434]

July 13, 2017

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Hassan Rkein, Appellant.

Rosemary Herbert, Office of the Appellate Defender, New York (Eunice Lee of counsel), and Jenner & Block LLP, New York (Matthew D. Cipolla of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J. at jury trial; Robert M. Stolz, at sentencing), rendered May 14, 2014, convicting defendant of assault in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of five years, unanimously affirmed.

The court properly denied defendant’s request for a justification charge regarding the second-degree assault count, because there was no reasonable view of the evidence, viewed in the light most favorable to defendant, to support either the objective or subjective aspects ( see People v Goetz , 68 NY2d 96 [1986]) of that defense ( see People v Watts , 57 NY2d 299, 301-302 [1982]). Under the facts presented, there was no reasonable view that defendant used anything less than deadly physical force as defined in Penal Law § 10.00 (11) when he struck the victim in the head with a pint beer glass, or that defendant was justified in using such force against the unarmed victim, who had merely pushed defendant ( see e.g.

People v Mason , 132 AD3d 777 [2d Dept 2015], appeal dismissed 29 NY3d 972 [2017]; People v White , 66 AD3d 585 [1st Dept 2009], lv denied 14 NY3d 807 [2010]).

We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Mazzarelli, Webber, Kahn and Kern, JJ..