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People v. Castillo

Justification Defense Refuted by Eyewitness Testimony Defendant Was Aggressor

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Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ann E. Scherzer, J.), rendered May 8, 2015, after a jury trial, convicting him of assault in the third degree, and imposing sentence. PER CURIAM. Judgment of conviction (Ann E. Scherzer, J.), rendered May 8, 2015, affirmed. The verdict, which rejected defendant’s justification defense, was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s determinations concerning credibility. The jury reasonably determined, based on the People’s proof, that defendant — who approached the victim, threatened to “slap the sh!t” out of him and then punched him in the nose, fracturing the orbital bone — acted as the initial aggressor in the altercation. Contrary to his present contention, defendant received a sufficient opportunity to demonstrate, in connection with his justification defense, his knowledge of prior violent acts by the victim. The court permitted defendant to testify about his knowledge of the victim’s “previous experience” in “fights” and that he was a “boxer,” while precluding other such evidence of alleged fighting by the victim that was too remote in time and quality (see People v. Miller, 39 NY2d 543, 552 [1976]; People v. Santiago, 211 AD2d 734 [1995], appeal denied 85 NY2d 942 [1995]). To the extent any of the court’s restrictions could be viewed as erroneous, we find them to be harmless in view of the eyewitness testimony that defendant was the aggressor, which overwhelmed defendant’s justification defense (see People v. Diallo, 297 AD2d 247, 248 [2002], lv denied 99 NY2d 535 [2002]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: October 26, 2021

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