OPINION OF THE COURT
Mastro, J.P.
The defendant stands convicted of murder in the second degree for the shooting death of Jamel Wisdom, and assault in the second degree for the shooting of Gamard Talleyrand, who survived his injuries. At trial the defendant relied on a misidentification defense, maintaining throughout the proceedings that he was not the individual depicted fighting with Wisdom on a grainy surveillance video that captured the shooting, and emphasizing Talleyrand’s inability to identify his assailant. On appeal the defendant primarily argues that he was denied his constitutional right to the effective assistance of counsel by his trial counsel’s failure to request that the court charge the jury on the potential alternative defense of justification, and that the trial court erred by failing to charge such a justification defense sua sponte. For the reasons that follow, we reject the defendant’s contentions. Trial counsel’s failure to request that the court charge a justification defense, which defense was contrary to his client’s claim of actual innocence and against his client’s informed choice and expressed wishes in selecting a defense, and which would have served to undermine his competing misidentification defense, did not render trial counsel’s representation constitutionally deficient. Furthermore, the trial court was not required to give a justification charge over the objections of the defendant and his counsel, and in contravention of the defendant’s personal and fundamental right to maintain his innocence and to present a defense of his own choosing.
The evidence at the defendant’s trial established that, at approximately 10:00 p.m. on September 22, 2008, the defendant and his cousin, Michael Morrison, were with their girlfriends and another friend (hereinafter the eyewitness) on East 17th Street in Brooklyn. According to the testimony of the eyewitness, at that time, a group of four or five other men, including Talleyrand and Wisdom, confronted the defendant and began to taunt, push, and fight with him. Talleyrand was “beating [the defendant] up,” although the fight consisted of “tussling. They was all like pushing him and trying to . . . act like tough guys and [the defendant], he didn’t really want to fight. They just provoked him and provoked him and he fought.” The eyewitness elaborated that “[the defendant] was fighting [Talleyrand] and they was all like pushing him and, like ... oh, you’re a pussy and trying to punk him.” The members of the group laughed at the defendant, who became “upset because they beat him up.” During the intermittent fighting, the eyewitness saw the defendant’s eye bleed, and she heard him say, “They got a knife, they are going to cut me.” However, the eyewitness did not specify which person allegedly had a knife, and neither the eyewitness nor any other witness ever testified to seeing any member of the group in possession of a knife. In fact, no evidence regarding the existence of a knife was ever mentioned again at the trial.
Once the fighting ceased, the defendant retreated to East 19th Street, but again he was accosted by his tormentors before he reached an apartment building at 68 East 19th Street, where he and Morrison lived on the fifth floor with relatives. Members of the group continued “provoking” him and were “beating him up again and they pushed him in the trash.” The defendant entered the building with Morrison, and the two returned to the street shortly thereafter, the defendant visibly angry and upset. The defendant walked down the block at a fast pace in the direction of the group who had been fighting with him. The eyewitness, who had accompanied the defendant to East 19th Street, did not see him do anything, but she heard gunshots and fled the scene.
Talleyrand, the defendant’s neighbor, testified that he had known the defendant for one to two years and had considered him a friend until they had a disagreement over the ownership of some jewelry. Talleyrand admitted to fighting with the defendant on the night in question. The fight ended in the vicinity of the defendant’s building, and Talleyrand did not notice where the defendant went afterwards. However, shortly after the fight ended, Talleyrand was standing in the street near some other people when he observed Wisdom drop to the ground. Talleyrand turned around and saw the barrel of a gun, so he began running. As he ran, a bullet struck him in the calf. He did not see, and could not identify, who was holding the gun. Talleyrand was treated at the hospital and eventually recovered from his wound.
Video recordings from surveillance cameras located in the interior and on the exterior of the defendant’s apartment building were admitted into evidence and played for the jury. The eyewitness identified the defendant as a male wearing a white T-shirt in the video. However, Talleyrand viewed the same footage and was unable to make any identification. The video revealed that the male in the white T-shirt and another male (identified by the eyewitness as Michael Morrison) entered the building lobby at approximately 10:26 p.m. (a time which coincided with the end of the fistfight in the street). The male in the white T-shirt used the elevator and the other male ascended a set of stairs. They then came down the stairs together a mere one minute later and hurriedly exited the building. The male in the white T-shirt walked into the street and appeared to shout and gesture at others, while his companion waited several feet from the lobby entrance. Approximately two minutes later, the male in the white T-shirt returned to his companion and, appearing agitated, retrieved a handgun from him. He then walked back into the street and out of the camera’s view. Approximately 20 seconds later, as confirmed by other evidence, Talleyrand was shot in the leg, and the crowd of bystanders hurriedly scattered in all directions. An additional 15 seconds later, the male in the white T-shirt, still holding the gun, reappeared on the video, quickly backing up toward the entrance to the building lobby as another man, subsequently identified as Wisdom, pursued him inside. Wisdom did not brandish any weapon. The two men entered the lobby and briefly wrestled. The male in the white T-shirt then wriggled free and fired several shots into Wisdom at close range. The two men fell to the ground together, and a third male appeared on the scene and separated them. The male in the white T-shirt then ran away, while the body of Wisdom, shot six times at close range, lay still on the floor of the lobby. Wisdom died from his wounds.
During the trial, the defendant’s assigned counsel advised the court on the record that he had discussed with the defendant the possibility of presenting defenses of extreme emotional disturbance and/or justification in addition to the misidentification defense favored by the defendant, but stated, “I would need the defendant’s permission to make such an argument.” Counsel summarized the defendant’s position thusly: “[H]e said no way. I do not wish to have you indicate in any manner, shape or form as far as justification or diminished capacity on the murder two. Without his permission I’ve told him I cannot do it. The answer was no way.”
In order to assure itself that the defendant, who was 21 years old at the time of the trial, understood the ramifications of his decision, the trial court engaged in a lengthy colloquy with him. As the transcript of that exchange reveals, the defendant, far from being an innocent waif who was unfamiliar with the relevant legal concepts and their potential consequences, demonstrated savvy and sophistication in his choice of defense:
“THE COURT: All right, Mr. Clark, you understand what counsel is saying? ... I mean the most common defense obviously [is] you got the wrong guy, it wasn’t me. Other times in a homicide case based on the circumstances the defendant may raise the claim, well, I did it but I thought he was going to kill me so it was self defense. Or third in some cases that whatever the circumstances were, even though I did it[,] I did it under an extreme emotional disturbance and, therefore, the law says that if established [it] might reduce a murder charge to a manslaughter charge, do you understand what I’m saying?
“THE DEFENDANT: I understand. I comprehend, Judge.
“THE COURT: Have you had an adequate opportunity to discuss these various legal issues and tactical decisions with your attorney?
“THE DEFENDANT: Yes.
“THE COURT: And we’ve indicated now in open court that at least [as] to the justification or self defense claim or the extreme emotional disturbance, . . . [h]ave you had a chance to discuss that?
“THE DEFENDANT: I did.
“THE COURT: And your attorney says that as a tactical decision which you’re entitled to make, that you don’t want to pursue those defenses in terms of justification and or extreme emotional disturbance, is that correct?
“THE DEFENDANT: That is correct.
“THE COURT: Anybody force you or threaten you in any way to make that decision?
“THE DEFENDANT: No.
“THE COURT: Anybody make any promises to you to get you to make that decision?
“THE DEFENDANT: No, sir.
“THE COURT: You doing so voluntarily in full recognition of the potential consequences?
“THE DEFENDANT: I am not making any decision . . . referring to you reducing it to any manslaughter or anything like that cause this is not me.
“THE COURT: Okay. All right” (emphasis added).
In accordance with the defendant’s foregoing acknowledgment that he had fully discussed potential alternative defenses, including justification, with his counsel; his emphatic insistence on pursuing only a misidentification defense because he was not the person depicted in the video recordings; and his unequivocal statement that he did not want to compromise his misidentification defense by submitting alternative defense theories that were necessarily premised on him being the shooter, defense counsel actively pursued the misidentification defense. Indeed, during the trial, counsel advised the court that he was investigating information that Khalid Wisdom, brother of Jamel Wisdom, the homicide victim, had been present on the night of the incident and might be willing to testify that someone other than the defendant had killed Jamel Wisdom. With the court’s assistance, counsel subsequently interviewed Khalid Wisdom, but ultimately determined that he did not wish to call him as a defense witness.
During summations, defense counsel emphasized the weakness of the identification evidence submitted by the prosecution, attacking the quality of the surveillance video recordings and arguing that it was impossible to make a definitive identification from them. He further questioned the ability of the eyewitness to make such an identification from the video, positing that her identification was attributable to the suggestive influence of the prosecution rather than her actual recognition of the shooter depicted in the indistinct video image. Counsel reinforced this theme by noting that shooting victim Talleyrand, who was very familiar with the defendant, was completely unable to make any identification from the video or from the circumstances of his own shooting. Counsel additionally pointed out the lack of any forensic evidence that clearly linked the defendant to the commission of the crimes, and suggested that the defendant’s cousin, Michael Morrison, may even have been the shooter.
During deliberations, the jury sent out a series of notes, one of which asked, “[W]ith respect to Mr. Wisdom if he initiated the struggle [and the defendant] was acting defensively does that negate intent to kill[?]” When the court solicited comments from counsel regarding the note, defense counsel, consistent with the defendant’s voluntary and informed defense decision, stated, “[A]s far as the murder is concerned the [c]ourt is aware that I have been instructed to use only one defense . . . that the defendant is not the one in the tapes.” With regard to fashioning an appropriate response to the note, defense counsel further suggested, in keeping with his client’s wishes, that the court should focus on the proof of the elements of murder in the second degree, especially intent to kill, but noted, “I object to any reference to self defense or you advising the jury that that issue was not before them and they’re not to rule on it.” Conversely, the prosecutor observed that justification had not been an issue in the case, and that “the People never had an opportunity to even deal with or address [that defense].” Therefore, the prosecutor advocated that, out of fairness, the jury be instructed not to consider justification. The court responded to the note by giving the jury a lengthy charge on intent, and thereafter provided the following instruction:
“Now under the law there is a concept in the law called justification, self defense. It requires a number of factors to be present. You were not instructed on what’s commonly called the law of self defense. What you were instructed on is the issue of intent . . . That is the — what you have to focus on; whether or not the defendant intended to cause the death of Mr. Wisdom in that causing his death was his conscious objective or purpose” (emphasis added).
Following several more notes addressing a variety of issues, and an additional day of deliberations, the jury returned a verdict finding the defendant guilty of intentional murder in the second degree and assault in the second degree. This appeal by the defendant ensued. Since the jurors apparently determined that the man wearing the white T-shirt in the surveillance video recordings was in fact the defendant, we will refer to him as such hereinafter.
On appeal, the defendant contends that the prosecution failed to present legally sufficient evidence that he intended to kill Wisdom, or alternatively, that the verdict in this regard was contrary to the weight of the evidence. He further asserts that he was denied the effective assistance of trial counsel based on his attorney’s failure to object to the trial court’s exclusion of the public audience from the courtroom during voir dire proceedings. Additionally, he maintains that his trial counsel was ineffective in failing to present a justification defense and to request a justification charge, notwithstanding the defendant’s own express wishes and explicit instructions to the contrary. Furthermore, he claims that the trial court erred in failing to instruct the jury, sua sponte, and over his objection, with respect to the justification defense in response to the aforementioned jury note, and that the court improperly enhanced his sentence based on his silence during the sentencing proceedings. As discussed below, several of these contentions are unpreserved for appellate review, and all are without merit.
I. Suffieiency/Weight of the Evidence
The defendant’s contention that the evidence was legally insufficient to support his conviction of murder in the second degree because the prosecution failed to prove the element of intent to kill is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Brummel, 103 AD3d 805 [2013]; People v Hollman, 98 AD3d 584, 585 [2012]; People v Arias, 64 AD3d 786, 787 [2009]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of that crime beyond a reasonable doubt (see People v Sanducci, 195 NY 361, 367-368 [1909]; People v Brummel, 103 AD3d 805 [2013]; People v Norris, 98 AD3d 586 [2012]; People v Hollman, 98 AD3d at 585; People v Martinez, 144 AD2d 699, 701 [1988]; People v Milea, 112 AD2d 1011, 1013 [1985]). Additionally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
II. Ineffective Assistance of Counsel
Contrary to the defendant’s contention, he was not deprived of the effective assistance of counsel by reason of his trial counsel’s failure to object to the exclusion of the defendant’s family members from the courtroom during voir dire. The record reveals that the courtroom was emptied of audience members in order to accommodate the seating of prospective jurors. At the time of the courtroom closure in this case, defense counsel had a reasonable basis for believing that the court’s conduct in clearing the courtroom was unobjectionable under the prevailing law in this Judicial Department (see People v Martin, 71 AD3d 917 [2010], revd 16 NY3d 607 [2011]). Although the Court of Appeals subsequently made clear that such closure constitutes error (see People v Martin, 16 NY3d 607 [2011]), “an attorney is not ineffective for failing to anticipate a change in the law” (People v Lewis, 102 AD3d 505, 506 [2013], affd 23 NY3d 179 [2014]; see People v Abner, 101 AD3d 1628, 1629 [2012]; People v Sanchez, 76 AD3d 122, 130 [2010]; People v Brisson, 68 AD3d 1544, 1547 [2009]).
The defendant further contends that his trial counsel was ineffective in acceding to the defendant’s wish to pursue only a misidentification defense and to forgo what he perceives to have been a potentially stronger justification defense based on the struggle between Wisdom and the man the jury ultimately found to be the defendant, which struggle was depicted in the video recorded by the surveillance camera in the apartment building lobby. This contention is unpersuasive.
To be sure, when a defendant accepts the assistance of counsel, he or she retains authority only over certain fundamental decisions, such as whether to plead guilty, whether to waive a jury trial, whether to testify at trial, and whether to take an appeal (see People v Davis, 13 NY3d 17, 30 [2009]; People v Colon, 90 NY2d 824, 825-826 [1997]). Matters of strategy and tactics, such as whether to request the submission of lesser-included offenses for the jury’s consideration (see People v Colville, 20 NY3d 20 [2012]; People v Brown, 117 AD3d 1536 [2014]), whether to seek or consent to a mistrial (see People v Ferguson, 67 NY2d 383 [1986]), or whether to introduce certain evidence at trial (see People v Lee, 120 AD3d 1137 [2014]), generally fall within the purview of counsel. However, and of particular significance in the present case, the Court of Appeals has made clear that “a defendant unquestionably has the right to chart his own defense” (People v DeGina, 72 NY2d 768, 776 [1988]). Contrary to the defendant’s current position, his decision to pursue a defense based solely on misidentification, and to affirmatively reject an alternate defense based on justification in steadfast furtherance of that misidentification defense, involved a matter that was “personal” and “fundamental” to him (see People v Colville, 20 NY3d at 31), and “did not implicate a matter of trial strategy or tactics” (People v Petrovich, 87 NY2d 961, 963 [1996]). Indeed, under our law there simply is no more personal and fundamental right than that of the accused to rise before the trial justice and proclaim — to the court and to the world — his or her complete factual innocence of the crimes with which he or she has been charged. To require defense counsel in this case, over his client’s objection, to undermine that assertion of innocence by the injection into the case of a factually and logically inconsistent defense would, under the circumstances presented, impermissibly compromise that personal right.
The decision in People v Petrovich (87 NY2d 961 [1996]) is instructive in this regard. There, the defendant, who was accused of murdering his parents, presented what is commonly referred to as an “insanity” defense. During a charge conference, the trial court inquired as to whether the defendant also wanted an instruction on the affirmative defense of extreme emotional disturbance which, if successful, would reduce the murder counts to manslaughter in the first degree. Defense counsel responded affirmatively to the court’s offer. However, on the following day, the defendant himself disagreed, advising the court that he did not want the extreme emotional disturbance defense presented to the jury, fearing that it would undermine his ability to secure a verdict of not guilty by reason of insanity. Defense counsel insisted that he, not the defendant, should decide what instructions to request. The trial court, after ascertaining that the defendant’s decision was knowing and voluntary, declined to charge the extreme emotional disturbance defense, over defense counsel’s strenuous objections. The defendant was convicted of two counts of second-degree murder and appealed, arguing that the trial court should have acted in accordance with his counsel’s wishes. The Court of Appeals rejected the argument, holding that “[a]s between defendant and his counsel, the decision whether to request submission of the affirmative defense of extreme emotional disturbance to the jury falls to defendant” (id. at 963). The Court of Appeals thereby determined that since the charging of the extreme emotional disturbance defense could lessen the defendant’s prospects of obtaining a complete acquittal on his insanity defense, the decision of whether to take that risk was reserved to the defendant.
Similarly, the defendant in this matter steadfastly maintained at trial that he was factually innocent of the charged offenses — that he in fact had been misidentified in the surveillance video recordings. This is hardly surprising. Misidentification is arguably the most commonly-employed defense asserted by criminal defendants, and scientific studies have documented numerous factors that can undermine the reliability of an identification (see generally People v LeGrand, 8 NY3d 449 [2007]). Thus, where the prosecution’s proof consists of an identification by a single witness, the evidence must be closely scrutinized, and courts have even permitted expert testimony regarding those circumstances that can influence the accuracy of an identification (see People v LeGrand, 8 NY3d 449 [2007]; People v Nazario, 100 AD3d 783 [2012]).
It is also clear from the present record that the defendant and his counsel appreciated that requesting the submission of the defense of justification, a defense logically at odds with the misidentification defense, could well reduce the defendant’s chances of acquittal by rendering his position less credible in the eyes of the jury. Indeed, a charge which informs the jury that the defendant claims he did not shoot the decedent and, further, that if he is found to have done so, he acted in self-defense may well undermine the credibility and dilute the strength of both defenses. Of course, a justification charge also would not even have applied to the assault count. In this regard, there is no evidence in the record that the defendant was confronted with any threat of the use of force against his person at any point between the time he exited the apartment building with Morrison and his shooting of Talleyrand. Accordingly, there simply was no reasonable view of the evidence which could have supported the submission of a justification defense with respect to the charge of assault in the second degree, and that defense could not have resulted in the complete acquittal that was so clearly the defendant’s ultimate goal in selecting the defense of misidentification. In similar circumstances, courts repeatedly have held that counsel is not ineffective where he or she adheres to his or her client’s chosen defense and declines the submission of additional defenses which, while potentially applicable to the facts of the case, are logically inconsistent with that chosen defense (see e.g. People v Cruz, 88 AD3d 540 [2011] [counsel was not ineffective in respecting his client’s desire to pursue an all-or-nothing defense of complete innocence and declining to pursue any defense that might lead to a conviction of a lesser offense]; People v Thomas, 299 AD2d 942 [2002] [counsel not ineffective in failing to pursue a justification defense where the proffered defense was mistaken identification]; People v Myers, 283 AD2d 258 [2001] [counsel did not err in failing to present a justification defense that would be substantially inconsistent with the proffered accident defense]).
The defendant’s attempt to distinguish People v Petrovich (87 NY2d 961 [1996]) by contending that its holding is limited only to the defense of extreme emotional disturbance, or only to affirmative defenses in general (as opposed to the ordinary defense of justification, which must be disproved by the prosecution), is without merit. It is clear that the prejudice caused by the submission of an additional, factually inconsistent defense — i.e., the undermining of both defenses and the loss of a potential complete acquittal — is the same, regardless of whether the additional defense is affirmative or ordinary. Accordingly, this consideration presents a sound basis for leaving the choice of defense, whether affirmative or ordinary, with the defendant rather than his or her attorney.
Likewise, the defendant’s claim that his counsel was ineffective for pursuing a weak misidentification defense instead of an appreciably stronger justification defense does not withstand scrutiny. Initially, as we have already noted, since the defendant had the right to chart his own defense, and since he made a voluntary, knowing, and intelligent election to pursue a viable misidentification defense and to eschew reliance upon a justification argument, it was not the role of his counsel to override his wishes by championing an inconsistent defense. However, even if we were to agree with the defendant’s current position that the decision in People v Colville (20 NY3d 20 [2012]), which grants defense counsel the final say regarding which lesser-included offenses to request, also gives counsel ultimate authority over which defenses to present, Colvilles pronouncement of such a new rule came almost two years after the conclusion of the defendant’s trial. Again, since counsel cannot be found ineffective for failing to anticipate changes in the law (see People v Lewis, 102 AD3d at 506; People v Abner, 101 AD3d at 1629), the defendant’s ineffective assistance argument must further fail in this regard.
Moreover, even if it could be said that defense counsel in this case erred in acceding to his client’s wishes based on a mistaken subjective belief that he was obligated to follow his client’s orders, the fact remains that “in ineffective assistance cases, counsel’s subjective reasons for a decision are immaterial, so long as ‘[v]iewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney’ ” (People v Evans, 16 NY3d 571, 575 [2011], quoting People v Satterfield, 66 NY2d 796, 799 [1985]). Contrary to the defendant’s present contention, the misidentification defense chosen by him, while perhaps not compelling, was at least as strong as the justification defense he now espouses on this appeal, and in fact appears to have been far more legally viable, such that trial counsel cannot be faulted for favoring a misidentification defense over a justification defense. There was no direct evidence that the defendant shot Talleyrand, nor was there any forensic evidence definitively linking him to the shooting of either Talleyrand or Wisdom. Moreover, while the prosecution did produce a lone witness, the eyewitness, who testified that the indistinct image of the shooter depicted in the surveillance video recordings was the defendant, the defendant’s former friend and longtime acquaintance, Talleyrand, was unable to identify the shooter from the same video. Furthermore, while the video images of the male identified as the defendant by the eyewitness admittedly lacked clarity, it is significant that the images failed to reveal any evidence of injuries to that male, despite the eyewitness’s testimony that the defendant was beaten repeatedly and was bleeding from his eye. Thus, there certainly was more than a colorable claim of misidentification in this case, and it is small wonder that the defendant maintained “this is not me” when referring to the shooter depicted in the surveillance video recordings.
Conversely, the purported justification defense and charge were much less attractive. First, as previously noted, justification would provide no defense whatsoever to the assault charge based on the shooting of Talleyrand, and therefore it could not possibly result in the acquittal of all charges that was the defendant’s ultimate goal. Second, the defense was tenuous at best. The evidence supporting it, viewed most favorably to the defendant, demonstrated that the defendant safely retreated to his residence once the fighting in the street ceased, but instead of remaining there and calling the police, he and Morrison hurriedly retrieved a gun from the premises and rejoined the conflict only one minute later. By his conduct, the defendant escalated the situation and assumed the role of the aggressor. These circumstances, coupled with an appropriate charge on justification principles, would not have augured well for the defense (see generally People v Collice, 41 NY2d 906 [1977]). Third, as noted earlier, the submission of a justification defense would logically conflict with the tenable misidentification defense, rendering it more likely that the jury would reject both. “While a defendant is not forbidden to [present contradictory defenses], it is plainly a hazardous tactic, for it not only risks confusing the jury as to the nature of the defense but also may well taint a defendant’s credibility in the eyes of the jury” (People v DeGina, 72 NY2d at 777 [citation omitted]).
“The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions [,] [but a] contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics” (People v Rivera, 71 NY2d 705, 708-709 [1988]). “As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance” (People v Benevento, 91 NY2d 708, 712-713 [1998]). Therefore, “[w]here the evidence, the law and the circumstances of a particular case, viewed together and as of the time of representation, reveal that meaningful representation was provided, defendant’s constitutional right to the effective assistance of counsel has been satisfied” (People v Satterfield, 66 NY2d at 798-799; see People v Baldi, 54 NY2d 137, 147 [1981]).
Applying the foregoing principles to the facts of this case, the trial record amply supports the conclusion that defense counsel did not, as the defendant suggests, permit the defendant to dictate the imposition of an incredible defense theory at the expense of a legitimate one. Rather, the evidence, viewed objectively, demonstrates that the misidentification defense had far greater evidentiary support than the purported justification defense, and that it constituted a strategy that might well have been pursued by a reasonably competent attorney (see e.g. People v Moore, 66 AD3d 707 [2009] [where the defendant claimed that the complainant was injured as the result of her own reckless conduct, counsel’s election not to also pursue a justification defense was not ineffective, since it avoided presenting to the jury two dramatically inconsistent defenses which could well have caused the jury to disbelieve the defendant altogether and reject both defenses], affd 15 NY3d 811 [2010]; People v Davis, 293 AD2d 486 [2002] [counsel not ineffective for failing to pursue a justification charge where that defense would have been weak and inconsistent with the facts of the case]; People v Rhodes, 281 AD2d 225 [2001] [counsel was not ineffective for failing to raise a justification defense that would have been weak, at best, and which might have undermined a stronger defense]; People v Vukel, 263 AD2d 416 [1999] [it was sound strategy for counsel to refrain from raising a weak justification defense in order to concentrate, instead, on other defenses], abrogated on other grounds by People v Wells, 24 NY3d 971 [2014]). In sum, after fully informing his client of the available defenses and their ramifications, and after having the trial court do the same, the defendant’s trial counsel adhered to the defendant’s reasonable election of a viable defense, and ably presented a tenable misidentification argument to the jury. The fact that the chosen defense proved unsuccessful, and that counsel did not pursue the questionable and inconsistent justification defense, simply cannot be equated with ineffective assistance of counsel. Accordingly, the defendant received meaningful legal representation (see People v Baldi, 54 NY2d 137 [1981]), and the defendant’s contrary assertion “ ‘confus [es] true ineffectiveness with mere losing tactics and accord [s] undue significance to retrospective analysis’ ” (People v McGee, 20 NY3d 513, 521 [2013], quoting People v Benevento, 91 NY2d at 712).
III. Court’s Alleged Charge Omission
Independent of defense counsel’s alleged ineffectiveness in failing to present a justification defense and to request a justification charge against his client’s wishes and in conflict with his client’s intelligently chosen defense, the defendant maintains that the trial court erred in failing to, sua sponte, provide the jury with a justification instruction. This argument is premised upon a twofold analysis — first, that the court’s obligation to charge on justification arises from its general duty to provide instructions on the material legal issues in a case, and second, that the court did not adequately respond to the jury’s note referencing self-defense because it did not provide a sua sponte instruction on justification. These arguments are unpreserved for appellate review and, in any event, are without merit.
Initially, the record establishes that the defendant’s current challenge to the adequacy of the court’s charge was never raised at the trial level. Indeed, neither the defendant nor his counsel requested the submission of the justification instruction to the jury; rather, they adamantly opposed any reference to that defense in the court’s charge. Under these circumstances, the defendant’s contention that such an instruction should have been given is unpreserved for appellate review (see People v Acevedo, 84 AD3d 1390 [2011]; People v Johnson, 75 AD3d 426 [2010]; People v Moore, 66 AD3d 707 [2009]; People v Hesterbay, 60 AD3d 564 [2009]; People v Rodriguez, 52 AD3d 399 [2008]; People v Palladino, 47 AD3d 491 [2008]; People v Rhodes, 281 AD2d 225 [2001]). In any event, for the reasons that follow, that contention is unpersuasive.
Turning to the merits, we note at the outset that we need not decide today whether there may ever exist circumstances in which an accused’s choice of defense is so ill-conceived and facially lacking in merit, and another defense is so clearly applicable to the given facts, that a trial court might be warranted in charging the latter defense against the accused’s wishes. Rather, we only determine that where, as in this case, an instruction regarding such a defense is adamantly opposed by the defendant and his counsel, would logically conflict with the defendant’s well-considered defense choice, and possesses only tenuous applicability to the facts of the case, “the risk attendant upon [presenting inconsistent defenses] should not [be] foisted on [the defendant] against his will” (People v Bradley, 88 NY2d 901, 904 [1996]; see People v DeGina, 72 NY2d at 777). As previously noted, this is precisely such a case.
It is true that a trial court must instruct the jury regarding the fundamental legal principles applicable to the case (see CPL 300.10 [2]), and “[w]hen evidence at trial viewed in the light most favorable to the accused, sufficiently supports a claimed defense, the court should instruct the jury as to the defense, and must when so requested” (People v Watts, 57 NY2d 299, 301 [1982]). This rule encompasses the defense of justification (see People v Petty, 7 NY3d 277, 284 [2006]; People v McManus, 67 NY2d 541, 549 [1986]; People v Jenkins, 93 AD2d 868 [1983]).
However, with regard to the foregoing, a long line of Appellate Division decisions establishes that where an instruction on the defense of justification would interfere with the accused’s chosen defense theory, the trial court is under no obligation to charge justification sua sponte (see e.g. People v Perez, 123 AD3d 592, 593 [2014] [where the defense challenged the credibility of prosecution witnesses and highlighted the lack of corroborating physical evidence, the court was not required to charge justification since “a sua sponte justification charge would have interfered with defendant’s strategy”]; People v Acevedo, 84 AD3d 1390 [2011] [court was not required to charge justification sua sponte where the defendant argued that he lacked the requisite intent to be charged as an accessory]; People v Kin Wong, 81 AD3d 421 [2011] [an unrequested justification charge would have improperly interfered with the defendant’s own theory of an accidental stabbing, and the court was under no obligation to deliver such an instruction sua sponte]; People v Johnson, 75 AD3d 426 [2010] [sua sponte justification charge would have interfered with the defense strategy, since the defendant unquestionably has the right to chart his own defense]; People v Moore, 66 AD3d 707 [2009] [court was under no obligation to give justification charge where it would interfere with defense that the complainant caused her own injury]; People v Palladino, 47 AD3d 491 [2008] [sua sponte justification charge would have unlawfully interfered with the defense strategy charted by the defendant]; People v Rhodes, 281 AD2d 225 [2001] [sua sponte delivery of justification charge would have been inconsistent with the defense strategy]; People v Vukel, 263 AD2d 416 [1999] [sua sponte presentation of justification issue to jury would have interfered with the defense strategy]; People v Castano, 236 AD2d 215 [1997] [court was under no obligation to give justification charge sua sponte where the defense proceeded on an “all or nothing” strategy based on credibility issues]; see generally People v Wright, 288 AD2d 28 [2001] [there was no reason for the court to deliver an agency charge sua sponte where the defendant asserted a completely different defense at trial]). In view of these decisions, the trial court in the present case clearly acted appropriately and in accordance with established precedent in respecting the defendant’s chosen defense of misidentification, and in declining to dilute that defense with an inherently antagonistic sua sponte justification charge.
Several arguments are presented in opposition to the above conclusion. None of them is persuasive. Initially, the defendant contends that since justification is an ordinary defense that must be disproved beyond a reasonable doubt by the prosecution (see Penal Law § 25.00 [1]; People v Steele, 26 NY2d 526, 528 [1970]), and since the evidence in this case which allegedly supported that defense was elicited on the prosecution’s direct case rather than presented by the defendant, the risk that the jury would perceive the factual inconsistency between the proffered misidentification defense and a justification charge is ameliorated. However, as we already have observed in our discussion of the defendant’s ineffective assistance of counsel claim, regardless of the manner in which the justification defense arises, its submission to the jurors still would have required their instruction that the defendant claims not to have been the person who shot the victims, but if in fact he was that person, then the jury should further consider whether his shooting of the decedent was justified. The jury thus would be asked to weigh factually inconsistent defense scenarios in which the defendant either did not commit the homicide at all, or was legally justified in committing it, a prospect that must necessarily detract from the potential persuasiveness of his misidentification defense.
The defendant further contends that, even if the possibility of prejudice from the presentation of inconsistent defenses initially existed in this case, such potential prejudice dissipated when the jurors sent a note to the court regarding whether the element of intent to kill would be negated if Jamel Wisdom, the homicide victim, “initiated the struggle” and the defendant merely “act[ed] defensively.” The defendant seizes on this note as a clear indication that the jury already had effectively rejected the misidentification defense at this point, thus paving the way for a sua sponte instruction on justification unimpeded by the risk of prejudice arising from the presentation of inconsistent defenses. However, while the jury’s note may have cast some doubt upon the continuing viability of the misidentification defense, it does not follow, as the defendant assumes, that the jurors had unanimously rejected that defense at that juncture in the case. Rather, that assumption is premised upon, and asks us to engage in, speculation regarding the jury’s deliberations and thought processes, a practice from which the courts consistently have been instructed to refrain precisely because the unpredictability of jury deliberations renders such intrusion into this realm an exercise fraught with uncertainty (see generally People v Abraham, 22 NY3d 140, 146 [2013]; People v Medina, 18 NY3d 98, 105 [2011]; People v Muhammad, 17 NY3d 532, 545 [2011]; People v Rayam, 94 NY2d 557, 561-562 [2000]; People v Wells, 18 AD3d 482, 483 [2005]; People v Hazlewood, 297 AD2d 752, 753 [2002]). To illustrate this point, it is equally possible that the jurors, or at least some of them, may still have been wrestling with the misidentification defense at that time, and were merely curious as to the potential applicability of self-defense to the case based on the final few seconds of the surveillance video recording that they viewed at the trial. Such curiosity on the part of the jury would hardly authorize the court to undermine the defendant’s intelligently chosen misidentification defense or to override his explicit request that the questionable defense of justification not be presented to the jury. In short, it was the defendant’s informed decision to persist in his misidentification defense notwithstanding the contents of the jury’s note, and it was not the place of the trial court to have compelled him to adopt a tenuous alternative defense that he already had explicitly and knowingly disavowed and that the prosecution had no opportunity to counter, nor should this reviewing Court require such a result. In light of these circumstances, “the jury’s note did not obligate the court to instruct the jury on a matter that had not been at issue during the trial” (People v Hesterbay, 60 AD3d at 566), and the court fulfilled its obligation to respond meaningfully to the note by advising the jurors that they had not been instructed on the .law of self-defense and should instead focus on the issues that had been submitted for their consideration (see People v Rodriguez, 52 AD3d 399 [2008]).
The defendant further argues that the video recording of the brief struggle between Wisdom and the defendant, in combination with the jury note, demonstrates that the applicability of the justification defense to the facts of this case was so clear and obvious that the trial court was required to charge justification sua sponte, notwithstanding the contrary wishes of the defendant and his counsel. However, while we agree that a generous view of the evidence in the light most favorable to the defendant could have supported the submission of a justification instruction in this matter, the inquiry does not end there. Rather, the issue is whether the trial court was obligated to give that charge when the instruction would interfere with the defendant’s own well-considered choice of a misidentification defense based on his claim of actual innocence, the defendant and his counsel affirmatively opposed any justification instruction for that very reason, and the proposed justification defense had little prospect of succeeding.
As to the foregoing factors, we already have noted the long line of precedents from our Court which hold that a trial court need not charge justification sua sponte where that defense theory would logically conflict with another defense chosen by the defendant. Reliance upon the decisions of the Appellate Division, First Department, in People v Copeland (216 AD2d 55 [1995]), People v Schwartz (168 AD2d 251 [1990]), and People v Rodwell (100 AD2d 772 [1984]) as authority to the contrary is unavailing, since those matters are factually distinguishable. Indeed, in each of those cases, and in virtually all of the decisions upon which our dissenting colleagues rely, the defendants took the stand at trial and admitted to engaging in the risk-creating conduct that resulted in harm to the victim, whereas the instant defendant steadfastly insisted that someone other than him committed the shootings. Accordingly, unlike the instant case, the submission of the justification defense in those matters would not have been fatally inconsistent with the defenses that had already been proffered by each accused. Furthermore, neither the defendant nor defense counsel in those cases affirmatively opposed a justification instruction; rather, they simply failed to request one, and the evidence in support of justification in each of those cases was quite strong. Conversely, the defendant and his counsel herein adamantly refused a justification defense and instruction precisely because they would conflict with the misidentification defense and had only tenuous evidentiary support in the record.
For much the same reasons, the reliance on our Court’s decision in People v Rivera (74 AD2d 589 [1980]) is misguided. While it appears from the brief decision in Rivera that the accused in that case denied assaulting the two victims, there was also substantial evidence of justification adduced at trial. However, the trial court did not give a justification instruction to the jury, and the defendant neither requested such a charge nor objected to the court’s failure to give it. On appeal, this Court reversed the judgment of conviction, determining that the evidence of justification was so strong that the instruction should have been given despite the defendant’s failure to request it. Of course, in the present case, the defendant did not merely fail to request a justification instruction; he unequivocally opposed it. Moreover, as hereinafter explained, the applicability of justification to the facts of this matter is questionable at best. Thus, the Rivera case is factually inapposite to the present matter and fails to advance the defendant’s position on this appeal.
This Court’s decisions in People v Giamanco (188 AD2d 547 [1992]) and People v Jenkins (93 AD2d 868 [1983]) also provide no support for the defendant’s position that the trial court should have given a justification charge over his affirmative objection. Those cases are manifestly inapplicable to the instant facts. In Giamanco, as in the previously discussed First Department cases, the accused admitted that he committed the act which led to the victim being shot, but merely denied that the shooting was intentional. Moreover, he opposed the submission of a justification charge on the legally erroneous ground that justification applies only to offenses that have a specific intent to harm as an element, but the trial court disagreed and instructed the jury with respect to that defense. We affirmed, noting established law that the defense of justification applies to a defendant’s risk-creating conduct, even when that conduct results in unintended consequences (see People v Giamanco, 188 AD2d at 547, citing People v Magliato, 68 NY2d 24, 28 [1986], and People v McManus, 67 NY2d 541 [1986]; see also People v Padgett, 60 NY2d 142, 146 [1983]). Since the defendant in Giamanco opposed a justification charge only on the mistaken basis that the defense applies exclusively to crimes involving an intent to harm, we upheld the trial court’s rejection of that argument and its giving of the charge.
Reliance upon People v Jenkins (93 AD2d 868 [1983]) is similarly misplaced. There, we determined that where the accused produced evidence that the victim, who allegedly was the aggressor, was stabbed during a struggle with the accused over a knife, justification should have been charged to the jury “despite the testimony on the record that [the accused] specifically declined the charge” (id. at 869). In so determining, we noted that the strong animosity between the accused and his trial counsel in that case, and the accused’s own indication that he actually expected a justification charge, rendered counsel’s declination of the charge suspect, thus “provid [ing] sufficient cause for finding that defense counsel’s unequivocal statement that defendant did not request the justification charge should not be deemed a waiver by [the accused] of his right to the charge” (id.). Accordingly, this discord between the accused and his counsel, and their apparent disagreement over the use of the justification defense, rendered the circumstances in Jenkins so unique that the decision is essentially limited to its facts.
In stark contrast to the foregoing cases, the defendant herein never admitted that he committed any acts in connection with the shooting of either of the victims; rather, he vehemently denied any involvement in those crimes and insisted that someone else was responsible, as was his fundamental right. Moreover, he affirmatively opposed the submission of any justification theory to the jury based on his view that it would interfere with his claim of innocence and compromise his defense of mistaken identity. Given the voluntary and informed nature of this choice and, as discussed below, the far from compelling nature of the purported justification evidence, neither the defendant nor his counsel can be faulted for rejecting the potential justification argument, and the trial court did not err in failing to charge it sua sponte.
The jury note regarding self-defense, and the current argument by the defendant that justification actually was the overarching issue in this case, are premised upon the few seconds of video in which the unarmed Wisdom and the man identified as the defendant, brandishing a handgun, struggled in the lobby of the defendant’s apartment building. However, while this brief portion of the video, standing alone, might be consistent with a layman’s understanding of a possible self-defense scenario, the legal reality is quite different, and the evaluation of the defendant’s conduct must be guided by applicable principles of law rather than visceral reactions to portions of the evidence. Indeed, Penal Law § 35.15 (2) authorizes the use of deadly physical force against another only when the actor reasonably believes that the other’s use of such force is imminent, and even then, inter alia, only if the actor is unable to retreat with complete personal safety and is not the initial aggressor (see People v Petty, 7 NY3d 277, 285 [2006] [“(w)hen justification is in issue, the trier of fact must first determine whether the defendant was the initial aggressor”]; People v Cotsifas, 100 AD3d 1015 [2012] [evidence that the accused was the initial aggressor, or failed to satisfy the duty to retreat, negates justification defense]; People v Crique, 63 AD3d 566, 567 [2009] [justification defense is dependent on evidence that the accused was not the initial aggressor and satisfied the duty to retreat]; People v Williams, 112 AD2d 176, 177 [1985] [defendant not entitled to avail himself of justification defense where evidence demonstrated that he was the initial aggressor and there was no indication that he withdrew from the encounter and communicated that withdrawal]).
Here, the defendant’s final struggle with Wisdom did not occur in a vacuum, and a complete and legally proper analysis of the justification issue requires the consideration of those circumstances which preceded that struggle. To that end, the record reveals that after being abused by his persecutors, the defendant was indeed able to successfully retreat to the safety of his fifth-floor apartment. Once there, he could have alerted the authorities to the attack on his person or, if he deemed the incident too insignificant for their intervention, he simply could have waited there until the group outside dispersed. However, the defendant did neither. In this regard, it is correctly observed that the defendant was not obligated to become a prisoner in his own home or to indefinitely forsake his normal routine simply because his group of tormentors remained outside. However, it is clear that nothing of that sort occurred here. Rather, the defendant did not seek to enlist the aid of law enforcement, but instead, in a clear act of vigilantism, hurriedly entered the apartment with Morrison, procured a handgun, and rushed back outside to renew the confrontation, all in less than 60 seconds. Angered by the indignities he had suffered at the hands of the group, and confident in the knowledge that he was now armed, he actively sought out his attackers, walking into the street and shouting and gesturing at the others. Although there is no evidence that anyone made any threat toward him at that time, he retrieved the gun from Morrison and, seconds later, shot the fleeing Talleyrand. When the unarmed Wisdom approached him immediately thereafter, the defendant backed up toward the entrance of the building’s public lobby before briefly struggling with Wisdom and then shooting him six times. Hence, any suggestion that the struggle between the two men in the lobby was a discrete and unprovoked event simply finds no support in the record; rather, the surveillance video recordings themselves demonstrate that these events were part of a single, ongoing incident in which the defendant readily cast himself in the role of the proverbial man who brings a gun to a fistfight. In seeking out his persecutors and then shooting one of them, he assumed the mantle of the aggressor. Moreover, there is no evidence that the defendant withdrew from the encounter and communicated that withdrawal to Wisdom. Therefore, there is little realistic possibility that a jury, properly instructed on the defense of justification (see 1 CJI[NY] 35.15 [2] [a]), and dutifully following the law, including the principle that the defense is not available to the aggressor, could have found for the defendant on that issue. Under these circumstances, the defendant had every right to pursue the comparatively stronger, albeit ultimately unpersuasive, misidentification defense, and to explicitly reject its dilution by the submission of an improbable justification charge. Likewise, under the facts of this case, the trial court cannot be faulted for its failure to ride roughshod over the defendant’s claim of innocence, as well as his chosen defense and express wishes, by presenting such a dubious instruction for the jury’s consideration. Accordingly, reversal in the interest of justice on this basis is not warranted.
IV. Sentencing
Finally, the defendant’s contention that the sentences imposed upon him improperly penalized him for exercising his constitutional right to remain silent at sentencing is unpreserved for appellate review (see People v Hurley, 75 NY2d 887 [1990]; People v Seymore, 106 AD3d 1033 [2013]; People v Romero, 101 AD3d 906 [2012]; People v Nelson, 77 AD3d 973 [2010]). In any event, this contention is without merit. Here, the record reveals no suggestion of retaliation or vindictiveness toward the defendant for declining to make a statement at sentencing. Rather, in imposing sentence, the Supreme Court properly considered appropriate factors, including the defendant’s lack of remorse (see People v Seymore, 106 AD3d 1033 [2013]; People v Garcia, 46 AD3d 573 [2007]; People v Cato, 5 AD3d 394 [2004]; People v Riley, 152 AD2d 757 [1989]; People v Aylesworth, 143 AD2d 353 [1988]; see also United States v Keskes, 703 F3d 1078 [7th Cir 2013]; Burr v Pollard, 546 F3d 828 [7th Cir 2008]; El v Artuz, 105 F Supp 2d 242 [SD NY 2000]). Moreover, under the circumstances presented, the challenged terms of imprisonment were not excessive (see People v Crandall, 172 AD2d 618 [1991]; People v Suitte, 90 AD2d 80 [1982]).
Accordingly, the judgment is affirmed.