        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

798
KA 14-00208
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY A. JONES, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered January 2, 2013. The judgment convicted
defendant, upon a jury verdict, of attempted assault in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of attempted assault in the second degree (Penal Law
§§ 110.00, 120.05 [7]), defendant contends that County Court erred in
denying his request for a jury charge on the defense of justification.
We reject that contention.

     It is well settled that “[a] trial court must charge the
factfinder on the defense of justification ‘whenever there is evidence
to support it’ . . . Viewing the record in the light most favorable to
the defendant, a court must determine whether any reasonable view of
the evidence would permit the factfinder to conclude that the
defendant’s conduct was justified. If such evidence is in the record,
the court must provide an instruction on the defense” (People v Petty,
7 NY3d 277, 284; see People v Cox, 92 NY2d 1002, 1004). Furthermore,
a defendant is justified in “us[ing] physical force upon another
person when and to the extent he or she reasonably believes such to be
necessary to defend himself, herself, or a third person from what he
or she reasonably believes to be the use or imminent use of unlawful
physical force by such other person” (Penal Law § 35.15 [1]; see
People v Goetz, 68 NY2d 96, 105-106). Here, there was no reasonable
view of the evidence supporting a justification charge because “[t]he
threatened harm must be imminent” (People v Victor, 176 AD2d 769, 769,
lv denied 79 NY2d 833), and here it was not (see People v Taylor, 134
AD3d 739, 740-741, lv denied 26 NY3d 1150; Victor, 176 AD2d at 769).
                                 -2-                              798
                                                            KA 14-00208

     Defendant further contends that the prosecutor improperly
bolstered the victim’s testimony by eliciting testimony from an
investigator regarding why the victim may have been reluctant to
provide testimony describing the amount of pain he experienced after
defendant punched him several times. Defendant did not object to the
investigator’s testimony on that ground, and thus defendant’s
contention is not preserved for our review (see generally People v
Osuna, 65 NY2d 822, 824). In any event, the investigator’s testimony
did not in fact bolster the victim’s testimony, but rather it
impeached the victim’s credibility by suggesting that the victim
minimized the extent of his injuries. Furthermore, “to the extent
that the People’s evidence included improper bolstering testimony, any
error in admitting that testimony is harmless” (People v Gibson, 137
AD3d 1657, 1658, lv denied 27 NY3d 1151; see generally People v
Crimmins, 36 NY2d 230, 241-242). Indeed, defendant was acquitted of
the assault charge that required proof that the victim sustained
substantial pain.

     Viewing the evidence in light of the elements of attempted
assault in the second degree as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s contention that the
verdict is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495).

     Finally, the sentence is not unduly harsh or severe.




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
