PEOPLE v. SNYDER (2012)

Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ). Defendant failed to preserve for our review his contention that the indictment is facially duplicitous (see People v. Becoats, 71 A.D.3d 1578, 1579, 897 N.Y.S.2d 820, affd. 17 N.Y.3d 643, 934 N.Y.S.2d 737, 958 N.E.2d 865, cert. denied ––– U.S. ––––, 132 S.Ct. 1970, 182 L.Ed.2d 822; People v. Filer, 97 A.D.3d 1095, 1096, 947 N.Y.S.2d 743). In any event, that contention is without merit inasmuch as “[e]ach count of [the] indictment ․ charge[s] one offense only” (CPL 200.30[1]; see People v. Wright, 85 A.D.3d 1642, 1642, 924 N.Y.S.2d 701, lv. denied 17 N.Y.3d 863, 932 N.Y.S.2d 28, 956 N.E.2d 809; see generally People v. Keindl, 68 N.Y.2d 410, 417, 509 N.Y.S.2d 790, 502 N.E.2d 577, rearg. denied 69 N.Y.2d 823, 513 N.Y.S.2d 1028, 506 N.E.2d 539), i.e., assault with a dangerous instrument (see Penal Law §§ 120.10[1]; 120.05[4] ). Although defendant's contention that the indictment was rendered duplicitous by the trial testimony need not be preserved for our review (see Filer, 97 A.D.3d at 1096, 947 N.Y.S.2d 743; People v. Boykins, 85 A.D.3d 1554, 1555, 924 N.Y.S.2d 711, lv. denied 17 N.Y.3d 814, 929 N.Y.S.2d 802, 954 N.E.2d 93), that contention is likewise without merit. The evidence establishes that the multiple punches and/or kicks delivered by defendant constitute a single uninterrupted assault rather than a series of distinct criminal acts (see People v. Alonzo, 16 N.Y.3d 267, 270, 920 N.Y.S.2d 302, 945 N.E.2d 495; People v. Kaid, 43 A.D.3d 1077, 1079–1080, 842 N.Y.S.2d 55; cf. Boykins, 85 A.D.3d at 1555, 924 N.Y.S.2d 711), and the assault “occurred over a short time frame, without apparent abeyance, and was triggered by a single incident of anger” (People v. Hines, 39 A.D.3d 968, 969–970, 833 N.Y.S.2d 721, lv. denied 9 N.Y.3d 876, 842 N.Y.S.2d 788, 874 N.E.2d 755).

Defendant also failed to preserve for our review his contention that the trial evidence is legally insufficient to establish his intent to cause serious physical injury to the victim or his use of a dangerous instrument inasmuch as he did not raise those specific grounds in his motion for a trial order of dismissal (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Latorre, 94 A.D.3d 1429, 1429–1430, 942 N.Y.S.2d 390, lv. denied 19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920). In any event, defendant's intent to cause serious physical injury may be inferred from, inter alia, his conduct, the surrounding circumstances, and the medical evidence (see People v. Nicholson, 97 A.D.3d 968, 969, 948 N.Y.S.2d 465; People v. Moore, 89 A.D.3d 769, 769, 931 N.Y.S.2d 886, lv. denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967; People v. White, 216 A.D.2d 872, 873, 629 N.Y.S.2d 362, lv. denied 86 N.Y.2d 805, 632 N.Y.S.2d 518, 656 N.E.2d 617). Additionally, “under the circumstances in which [they were] used, attempted to be used or threatened to be used,” defendant's boots were “readily capable of causing death or other serious physical injury” and thus qualify as a “dangerous instrument” (Penal Law § 10.00[13]; see People v. Ingram, 95 A.D.3d 1376, 1377, 943 N.Y.S.2d 311, lv. denied 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2d 767; People v. Richardson, 95 A.D.3d 791, 791–792, 945 N.Y.S.2d 302, lv. denied 19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922).

We reject defendant's further contention that the evidence is legally insufficient to establish that the victim sustained a serious physical injury. As relevant here, the Penal Law defines “[s]erious physical injury” as, inter alia, “physical injury which ․ causes ․ serious and protracted disfigurement” (§ 10.00[10] ). Here, the record establishes that, as a result of the assault, five of the victim's teeth were significantly damaged. The victim's dentist testified that one of the victim's teeth was broken off at the gum line, another tooth was broken in half, and three other teeth were badly fractured. According to the dentist, three of the victim's teeth were damaged so extensively that they could not be restored and had to be extracted. The remaining damaged teeth were fractured so badly that they required crowns. In addition, the People introduced in evidence photographs of the victim's teeth and copies of his dental X rays that showed the extent of the damage to his teeth. We thus conclude that the evidence is legally sufficient to establish that the victim suffered “serious and protracted disfigurement” (id.; see People v. Heier, 90 A.D.3d 1336, 1337, 935 N.Y.S.2d 208, lv. denied 18 N.Y.3d 994, 945 N.Y.S.2d 649, 968 N.E.2d 1005; People v. Crawford, 200 A.D.2d 683, 684, 607 N.Y.S.2d 48, lv. denied 83 N.Y.2d 870, 613 N.Y.S.2d 131, 635 N.E.2d 300; Matter of Patrick W., 166 A.D.2d 652, 653, 561 N.Y.S.2d 78; People v. Howard, 79 A.D.2d 1064, 1065, 435 N.Y.S.2d 399). Because “the evidence at trial is legally sufficient to support the conviction, defendant's further contention that the evidence presented to the grand jury was legally insufficient is not reviewable on appeal” (People v. Brown, 96 A.D.3d 1561, 1562, 946 N.Y.S.2d 761; see CPL 210.30[6]; People v. Johnson, 94 A.D.3d 1408, 1409, 942 N.Y.S.2d 302, lv. denied 19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920). Contrary to the further contention of defendant, we conclude that, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant failed to preserve for our review his contention that the admission in evidence of hospital and dental records violated his right of confrontation inasmuch as he failed to object to the admission of those records (see People v. Snyder, 91 A.D.3d 1206, 1213, 937 N.Y.S.2d 429, lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218; People v. Myers, 87 A.D.3d 826, 829, 928 N.Y.S.2d 407, lv. denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Defendant also failed to preserve for our review his contention that County Court erred in admitting expert testimony without an adequate foundation (see People v. Scott, 93 A.D.3d 1193, 1195, 940 N.Y.S.2d 411, lv. denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217, reconsideration denied 19 N.Y.3d 1001, 951 N.Y.S.2d 477, 975 N.E.2d 923; People v. Nguyen, 66 A.D.3d 1367, 1367, 885 N.Y.S.2d 677, lv. denied 13 N.Y.3d 909, 895 N.Y.S.2d 323, 922 N.E.2d 912). In any event, defendant's contention goes to the weight of the testimony, not its admissibility (see Scott, 93 A.D.3d at 1195, 940 N.Y.S.2d 411; People v. Hayes, 33 A.D.3d 403, 404, 822 N.Y.S.2d 81, lv. denied 7 N.Y.3d 902, 826 N.Y.S.2d 611, 860 N.E.2d 73).

Contrary to defendant's further contention, there was no Rosario violation. “There is no requirement that a prosecutor record in any fashion his [or her] interviews with a witness. If the prosecutor chooses to do so, Rosario and its progeny require that the recording be furnished to the defense. But nothing in the Rosario line of cases in any way imposes an obligation on the prosecutor to create Rosario material in interviewing witnesses. Nor do these cases or any related authority hold that a defendant's right of cross-examination is unfairly frustrated by the failure to record the witness's statement” (People v. Steinberg, 170 A.D.2d 50, 76, 573 N.Y.S.2d 965, affd. 79 N.Y.2d 673, 584 N.Y.S.2d 770, 595 N.E.2d 845; see People v. Littles, 192 A.D.2d 314, 315, 595 N.Y.S.2d 463, lv. denied 81 N.Y.2d 1016, 600 N.Y.S.2d 204, 616 N.E.2d 861).

We also reject the contention of defendant that he received ineffective assistance of counsel. With respect to defense counsel's failure to request a Huntley hearing, “[d]efendant failed to show that, had [defense] counsel moved for [such] a ․ hearing, his statements would have been suppressed” (People v. Hill, 281 A.D.2d 917, 918, 722 N.Y.S.2d 652, lv. denied 96 N.Y.2d 902, 730 N.Y.S.2d 800, 756 N.E.2d 88; see generally People v. Salsbery, 78 A.D.3d 1624, 1625–1626, 911 N.Y.S.2d 547, lv. denied 16 N.Y.3d 836, 921 N.Y.S.2d 200, 946 N.E.2d 188). Thus, defendant did not establish that defense counsel was ineffective in failing to make such a motion (see generally People v. Tolliver, 93 A.D.3d 1150, 1151, 940 N.Y.S.2d 398, lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218). Further, defendant failed to demonstrate the absence of a strategic or other legitimate explanation for defense counsel's failure to seek suppression of defendant's statements to the police, particularly given that those statements were consistent with his justification defense (see generally People v. Jurjens, 291 A.D.2d 839, 840, 737 N.Y.S.2d 891, lv. denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614). Contrary to defendant's contention that defense counsel did not engage in an examination of prospective jurors, the record establishes that defense counsel in fact questioned each of the three panels of prospective jurors (cf. People v. Bell, 48 N.Y.2d 933, 934, 425 N.Y.S.2d 57, 401 N.E.2d 180, rearg. denied 49 N.Y.2d 802, 426 N.Y.S.2d 1029, 403 N.E.2d 466). With respect to defendant's contention that defense counsel allegedly engaged in an “unsuccessful” cross-examination of the victim, “[t]hat contention constitutes a disagreement with the strategies and tactics of [defense] counsel [that], in hindsight, may have been unsuccessful but, nonetheless, do not rise to a level of ineffective assistance of counsel” (People v. Ocasio, 81 A.D.3d 1469, 1469, 917 N.Y.S.2d 803, lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981, cert. denied ––– U.S. ––––, 132 S.Ct. 318, 181 L.Ed.2d 196 [internal quotation marks omitted]; see generally People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19). With respect to the remaining instances of ineffective assistance of counsel alleged by defendant, we conclude based on the record before us that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Contrary to the further contention of defendant, he was “not denied a fair trial by the cumulative effect of the alleged errors” set forth herein (People v. McKnight, 55 A.D.3d 1315, 1317, 864 N.Y.S.2d 224, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 13, 902 N.E.2d 447; see generally People v. Gramaglia, 71 A.D.2d 441, 445, 423 N.Y.S.2d 78).

We agree with defendant, however, that the sentence is unduly harsh and severe under the circumstances of this case, and we therefore modify the sentence as a matter of discretion in the interest of justice to a determinate term of imprisonment of seven years.

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence to a determinate term of imprisonment of seven years and as modified the judgment is affirmed.

MEMORANDUM: