THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL REITZ DEFENDANT APPELLANT (2015)

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, inter alia, two counts each of burglary in the first degree (Penal Law § 140.30[2], [3] ) and assault in the first degree (§ 120.10[1], [2] ), defendant contends that he was denied the effective assistance of counsel.   We reject that contention.   Although we agree with defendant that defense counsel should not have questioned him about a prior conviction after County Court's Sandoval ruling precluded the People from doing so, we conclude that defense counsel's error was “not so egregious and prejudicial that [it] deprived defendant of his right to a fair trial” (People v. Morrison, 48 AD3d 1044, 1045, lv denied 10 NY3d 867;  see People v. Hobot, 84 N.Y.2d 1021, 1024;  cf.  People v. Webb, 90 AD3d 1563, 1564, amended on rearg 92 AD3d 1268).

We likewise reject defendant's contention that his conviction of assault in the first degree under Penal Law § 120.10(1) and (2) is not supported by legally sufficient evidence of serious physical injury and serious disfigurement, respectively.   With respect to section 120.10(1), “[t]he element of serious physical injury was satisfied by evidence supporting the conclusion that the wound[ ] inflicted by defendant caused serious disfigurement to [the] victim['s] face[ ]” (People v. Matos, 121 AD3d 545, 546;  see People v. Snyder, 100 AD3d 1367, 1368;  see generally People v. Stewart, 18 NY3d 831, 832).   With respect to section 120.10(2), a person is guilty of assault in the first degree if he or she “[w]ith intent to disfigure another person seriously and permanently ․ causes such injury” (id.), and “[a] person is ‘seriously’ disfigured when a reasonable observer would find [his or] her altered appearance distressing or objectionable” (People v. McKinnon, 15 NY3d 311, 315).   Here, the evidence at trial established that the victim sustained a four-inch-long wound to her cheek that left a permanent scar.  “[V]iewed as a whole, and especially considering the prominent location of the wound on the face, [the evidence at trial] support[s] the inference that at the time of trial the scar[ ] remained seriously disfiguring under the McKinnon standard” (People v. Coote, 110 AD3d 485, 485, lv denied 22 NY3d 1198;  see Matos, 121 AD3d at 546;  People v. Gumbs, 107 AD3d 548, 548, lv denied 22 NY3d 1156, cert denied _ U.S. _, 135 S Ct 143).

Viewing the evidence in light of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).  “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v. Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted] ), and “[i]t was within the jury's province to reject the testimony of defendant's alibi witnesses” (People v. Smith, 278 A.D.2d 837, 837, lv denied 96 N.Y.2d 835).

Frances E. Cafarell

Clerk of the Court