People v. Johnson

On cross-examination the prosecutor questioned defendant concerning the absence of prearrest and postarrest claims of self-defense and/or intoxication and on summation commented on defendant’s pretrial silence. Such questioning and commentary violated defendant’s 5th Amendment rights (Doyle v Ohio, 426 US 610 , 617-618; People v Conyers, 52 NY2d 454 , 456-457; People v Artis, 67 AD2d 981 ; People v Smoot, 59 AD2d 898 ). Defense counsel, however, did not object to the cross-examination or summation and thus has failed to preserve the issue for appellate review (see, CPL 470.05 [2]; People v Thomas, 50 NY2d 467 , 473). In view of the overwhelming evidence of guilt we decline to reach the issue here in the interest of justice (see, CPL 470.15 [6] [a]; People v Thomas, supra, p 473 ; People v Anderson, 99 AD2d 560 ).

The court did not err when it refused to charge criminally negligent assault in the third degree (Penal Law § 120.00 [3]) as a lesser included offense. Since the uncontradicted testimony shows that the defendant was engaged in intentional conduct, there is no reasonable view of the evidence in the record which would support a finding of criminal negligence (People v Wright, 105 AD2d 1088 ; People v Cash, 81 AD2d 1002 ). We have reviewed defendant’s other claims of error and find them to be without merit. (Appeal from judgment of Supreme Court, Monroe County, Mark, J. — assault, second degree.) Present — Hancock, Jr., J. P., Callahan, Denman, Green and O’Donnell, JJ.