PEOPLE v. LEE (2020)

Judgment, Supreme Court, New York County (Gilbert C. Hong, J.), rendered October 31, 2016, as amended January 25, 2017, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of six years, unanimously affirmed.

The court providently exercised its discretion in permitting a testifying police officer to display his police-issued expandable baton to the jury and demonstrate how it expanded. The baton was a suitable model or demonstrative aid (see People v. Del Vermo, 192 N.Y. 470, 482–483, 85 N.E. 690 [1908]; People v. Hanzlik, 95 A.D.3d 601, 602–03, 945 N.Y.S.2d 229 [1st Dept. 2012], lv denied 19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919 [2012]). Despite a difference in length, the police baton closely corresponded to the unrecovered object wielded by defendant in the assault, as described in the victim's testimony, with particular reference to its expansion feature, and the essence of the demonstration is sufficiently documented in the record. The court gave a careful limiting instruction that was sufficient to prevent any prejudice. Defendant's remaining arguments on this issue are unavailing.

The verdict 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 evidence supports the conclusion that defendant used a dangerous instrument in the assault.

The court providently exercised its discretion when it charged the jury on the statutory definition of dangerous instrument, as set forth in the Criminal Jury Instructions, and declined to add language that a fist does not constitute a dangerous instrument. Although defendant is correct that a fist or other body part cannot so qualify (see People v. Owusu, 93 N.Y.2d 398, 399, 690 N.Y.S.2d 863, 712 N.E.2d 1228 [1999]), there was no reasonable possibility that the jury could have been misled in this regard. The People's theory, throughout the case and as specifically reflected in the parties' openings and summations, was that the only alleged dangerous instrument was the object described by the victim.

Defendant's argument regarding the prosecutor's impeachment of defendant's testimony was not preserved, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. We have considered and rejected defendant's ineffective assistance of counsel claim relating to the lack of preservation (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).