PEOPLE v. NEWMAN (2019)

Judgment, Supreme Court, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered July 23, 2013, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a persistent violent felony offender, to a prison term of twenty years to life, unanimously 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 is no basis for disturbing the jury's credibility determinations.  The jury could have reasonably concluded that the victim's serious neck wound could only have been caused by a knife or other dangerous sharp object.  Given that defendant cut the victim's neck, the inference that he did so with the intent to cause, at least, serious physical injury is inescapable (see generally People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425 [1980] ).

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice.  As an alternative holding, we find that the challenged remarks generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments, and that the summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).  We have considered and rejected defendant's ineffective assistance of counsel claims (see People v. Speaks, 28 N.Y.3d 990, 992, 42 N.Y.S.3d 644, 65 N.E.3d 673 [2016];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

The court properly denied, without a hearing, defendant's CPL 330.30(2) motion to set aside the verdict based on alleged juror misconduct.  Although a “verdict may not be impeached by probes into the jury's deliberative process” (People v. Maragh, 94 N.Y.2d 569, 573, 708 N.Y.S.2d 44, 729 N.E.2d 701 [2000] ), a narrow exception exists for “statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict” (Peña–Rodriguez v. Colorado, ––– U.S. ––––, 137 S Ct 855, 869, 197 L.Ed.2d 107 [2017];  see also People v. Leonti, 262 N.Y. 256, 186 N.E. 693 [1933] ).  However, viewed in context, one juror's remarks during deliberations about his general awareness of conflicts between “African Americans” (defendant's ethnicity) and “Jamaicans” or “Caribbeans” (the victim's ethnicity) did not rise to the level of overt bias against or in favor of either group, nor did they “tend to show that racial animus was a significant motivating factor in the juror's vote to convict” (Peña–Rodriguez, 137 S Ct at 869).  Defendant's remaining claims regarding jury deliberations are barred by the no-impeachment rule.