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 *1022said, 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.