PEOPLE v. MARQUEZ (2008)

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered April 26, 2006, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a second felony offender, to a term of 15 years, unanimously affirmed.

 The verdict 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] ).   There is no basis for disturbing the jury's determinations concerning credibility, including its acceptance of the victim's testimony concerning his physical condition.   The element of serious physical injury was satisfied by evidence establishing that the victim sustained a “protracted impairment of health” (Penal Law § 10.00[10] ).   The fractured bones in the victim's foot, which evidently failed to heal properly, required him to use crutches for two months and continued to cause him difficulty in standing and walking two years later (see People v. Graham, 297 A.D.2d 579, 747 N.Y.S.2d 171 [2002], lv. denied 99 N.Y.2d 535, 752 N.Y.S.2d 596, 782 N.E.2d 574 [2002];  People v. Pittman, 253 A.D.2d 694, 679 N.Y.S.2d 101 [1998], lv. denied 92 N.Y.2d 1052, 685 N.Y.S.2d 430, 708 N.E.2d 187 [1999] ).   The evidence also supports the conclusion that when defendant shot at the victim he intended to cause serious physical injury.

 Defendant did not preserve his present argument that the court should have submitted assault in the third degree under the theory of criminal negligence (Penal Law § 120.00[3] ) as a lesser included offense, and we decline to review it in the interest of justice.   Defense counsel neither alerted the court to the type of third-degree assault he was requesting nor articulated any reasonable view of the evidence to support such a submission, and, contrary to defendant's suggestion on appeal, it was not the court's responsibility to guess what counsel meant (see e.g. People v. Koh, 225 A.D.2d 476, 639 N.Y.S.2d 800 [1996], lv. denied 88 N.Y.2d 997, 649 N.Y.S.2d 404, 672 N.E.2d 630 [1996] ).   As an alternative holding, we find there was no reasonable view of the evidence to support such charge (see People v. Randolph, 81 N.Y.2d 868, 597 N.Y.S.2d 630, 613 N.E.2d 536 [1993] ).

 The court properly exercised its discretion in denying defendant's motion for a mistrial after a prosecution witness experienced an episode of mental illness during cross-examination and was unable to continue testifying (see generally People v. Vargas, 88 N.Y.2d 363, 379-80, 645 N.Y.S.2d 759, 668 N.E.2d 879 [1996] ).   The court struck the witness's entire testimony, with thorough instructions that went well beyond a mere instruction to disregard it.   The court told the jury that, because of the witness's psychiatric condition, “his testimony is totally unreliable and is not to be credited in any way,” and the jury is presumed to have followed the court's instructions (see People v. Berg, 59 N.Y.2d 294, 299-300, 464 N.Y.S.2d 703, 451 N.E.2d 450 [1983] ).

We perceive no basis for reducing the sentence.