PEOPLE v. HODGSON (2023)

Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered May 4, 2017, convicting defendant, after a jury trial, of attempted murder in the second degree and assault in the first degree, and sentencing him to concurrent prison terms of 15 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  The element of serious physical injury (Penal Law § 10.00[10]) required for the assault conviction (Penal Law § 120.10[1]) was established by evidence that, for months after the attack, the victim needed to use a cane due to the injuries to his knee and head, and, even two years after the attack, still had difficulty breathing.  This established the victim's protracted impairment of health (see People v. Corbin, 90 A.D.3d 478, 479, 934 N.Y.S.2d 389 [1st Dept. 2011], lv denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012]).  The weight of the evidence established defendant's homicidal intent, given defendant's repeated blows to the victim's head and body with a baseball bat (see People v. Vukel, 263 A.D.2d 416, 695 N.Y.S.2d 73 [1st Dept. 1999], lv denied 94 N.Y.2d 830, 702 N.Y.S.2d 601, 724 N.E.2d 393 [1999]).

Defendant's constitutional rights were not violated when he was handcuffed during the rendition of the verdict and polling of the jury, since the trial court had grounded security concerns specific to this case that justified handcuffing the defendant “to protect the courtroom and its occupants” (see Deck v. Missouri, 544 U.S. 622, 624, 633, 125 S.Ct. 2007, 161 L.Ed.2d 953 [2005], People v. Sanders, 39 N.Y.3d 216, 218–219, 184 N.Y.S.3d 703, 205 N.E.3d 423 [2023]).  In any event, any error was harmless given the overwhelming evidence of guilt (see People v. Clyde, 18 N.Y.3d 145, 153–154, 938 N.Y.S.2d 243, 961 N.E.2d 634 [2011], cert denied 566 U.S. 944, 132 S.Ct. 1921, 182 L.Ed.2d 784 [2012]).

Defendant waived his claim that he was deprived of a fair trial by appearing before the jury in prison-issued clothing, as he never objected to his attire and did not request any remedy (see People v. Jones, 187 A.D.3d 612, 613–614, 131 N.Y.S.3d 134 [1st Dept. 2020], lv denied 36 N.Y.3d 973, 138 N.Y.S.3d 472, 162 N.E.3d 701 [2020];  People v. Oliveri, 29 A.D.3d 330, 332, 813 N.Y.S.2d 435 [1st Dept. 2006], lv denied 7 N.Y.3d 760, 762, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006]).  His claim is also unpreserved (see People v. Ellis, 34 N.Y.3d 1092, 1092–1093, 116 N.Y.S.3d 654, 139 N.E.3d 1234 [2019]).

Defendant's challenges to the prosecutor's summation are unpreserved, and we decline to review his unpreserved claims in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).  The remarks at issue constituted permissible comment based on the evidence and were responsive to defendant's summation arguments.

We perceive no basis for reducing the sentence.