PEOPLE v. BEKKA (2018)

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered November 9, 2016, convicting defendant, after a jury trial, of assault in the second degree and obstructing governmental administration in the second degree, and sentencing him, as a second felony offender, to an aggregate term of six years, unanimously modified, as a matter of discretion in the interest of justice, to reduce the assault sentence to 4 years, and otherwise 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] ).  There was ample evidence that defendant caused physical injury to a court officer.  The officer's testimony supported the conclusion that he sustained substantial pain and impairment of physical condition that persisted for two weeks (see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007];  People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ).  To the extent that defendant challenges the credibility of the officer's description of his injuries, we find no basis for disturbing the jury's credibility determination.

Defendant did not preserve his challenges to the court's charge on physical injury, and to its response to a jury note on the same subject, and we decline to review them in the interest of justice.  As an alternative holding, we find that the court sufficiently conveyed the applicable standards, and that its rereading of the initial charge was a meaningful response to the note.  We have considered and rejected defendant's argument that his trial counsel rendered ineffective assistance by approving of the two instructions at issue.

We find the sentence excessive to the extent indicated.