THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WAYNE STEWART DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ), defendant contends that the conviction is not supported by legally sufficient evidence because the People failed to establish that the victim sustained a serious physical injury within the meaning of Penal Law § 10.00(10).   Defendant did not move for a trial order of dismissal on that ground and thus failed to preserve his contention for our review (see People v. Gray, 86 N.Y.2d 10, 19).   In any event, we conclude that his contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   The People presented evidence establishing that the victim sustained four stab wounds, which resulted in permanent scars.   In addition, the victim testified that he feels pain “[e]very day” as a result of his injuries.   We thus conclude that the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621), is legally sufficient to establish that the victim sustained a serious physical injury (see People v. Alston, 45 AD3d 398, 399, lv denied 10 NY3d 807;  People v. McDuffie, 293 A.D.2d 287, lv denied 98 N.Y.2d 699;  People v. Gagliardo, 283 A.D.2d 964, lv denied 96 N.Y.2d 901).

Defendant's challenge to the jury panel was not in writing and thus is not preserved for our review (see CPL 270.10[2];  People v. Prim, 40 N.Y.2d 946, 947;  People v. Whitfield, 152 A.D.2d 998, 999, lv denied 74 N.Y.2d 900).   In any event, the contention of defendant that he was denied the right to be tried by a jury of his peers is without merit, inasmuch as he failed to meet his initial burden of establishing “a prima facie case of the systematic exclusion of blacks from the jury panel” (Whitfield, 152 A.D.2d at 999;  see People v. Guzman, 60 N.Y.2d 403, 409, cert denied 466 U.S. 951;  People v. Jordan, 261 A.D.2d 947, lv denied 93 N.Y.2d 1003).

Patricia L. Morgan

Clerk of the Court