PEOPLE v. FINLEY (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michelle A. Johnson, J.), rendered July 11, 2022, convicting him of assault in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was arrested and charged with, among other things, assault in the first degree and criminal possession of a weapon in the third degree as a result of an unprovoked attack in which he hit the complainant over the head with a glass bottle and then “buried” the broken bottle into the complainant's face “with a lot of force,” causing extensive facial injuries requiring approximately 150 stitches all over the complainant's face, loss of four teeth, and a “fracture of the left orbital port.”  After trial, a jury found the defendant guilty of assault in the first degree and criminal possession of a weapon in the third degree, and the defendant was thereafter sentenced.  The defendant appeals.

The defendant contends that the evidence was legally insufficient to support his conviction of assault in the first degree because the evidence presented at trial failed to establish his identity as the perpetrator, that he acted with the intent to disfigure the complainant seriously, and that he caused such serious disfigurement.  Contrary to the defendant's contentions, each of these arguments is unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's identity as the perpetrator beyond a reasonable doubt (see People v. Key, 223 A.D.3d 755, 755, 203 N.Y.S.3d 386;  People v. Abellard, 212 A.D.3d 842, 842–843, 181 N.Y.S.3d 663;  People v. Keating, 183 A.D.3d 595, 596–597, 123 N.Y.S.3d 160).  Additionally, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the defendant acted with intent to cause serious disfigurement to the complainant and that he did cause such serious disfigurement to the complainant's face (see People v. Komynar, 210 A.D.3d 698, 699, 177 N.Y.S.3d 672;  People v. Medor, 39 A.D.3d 362, 362, 833 N.Y.S.2d 100;  People v. Walker, 30 A.D.3d 215, 215, 816 N.Y.S.2d 466), which the jury observed during the trial (see People v. McKinnon, 15 N.Y.3d 311, 316, 910 N.Y.S.2d 767, 937 N.E.2d 524;  People v. Jimenez, 155 A.D.3d 591, 591, 64 N.Y.S.3d 512).

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant failed to preserve for appellate review his challenges to the prosecutor's summation remarks, as he either failed to object to such remarks or failed to request further relief after his objections were sustained and curative instructions provided (see CPL 470.05[2];  People v. Dunaway, 207 A.D.3d 742, 744, 172 N.Y.S.3d 108;  People v. Lawson, 163 A.D.3d 996, 999–1000, 82 N.Y.S.3d 568).  In any event, the remarks the defendant now challenges either constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom or were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Salcedo, 209 A.D.3d 678, 680, 175 N.Y.S.3d 329;  People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95).  Moreover, the evidence of the defendant's guilt was overwhelming, and there is no significant probability that any improper remarks made by the prosecutor during summation contributed to the defendant's convictions (see People v. Green, 223 A.D.3d 914, 915, 204 N.Y.S.3d 222;  People v. Wu Long Chen, 210 A.D.3d 702, 703–704, 177 N.Y.S.3d 698;  People v. Green–Faulkner, 189 A.D.3d 1070, 1072, 136 N.Y.S.3d 319).

The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a “mixed claim of ineffective assistance” (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386;  see People v. Evans, 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457).  Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Dunaway, 207 A.D.3d at 744, 172 N.Y.S.3d 108;  People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314;  People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DILLON, J.P., FORD, LANDICINO and GOLIA, JJ., concur.