PEOPLE v. LEW (1998)

Appeal by the defendant from (1) a judgment of the Supreme Court, Suffolk County (Klein, J.), rendered November 6, 1997, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence, and (2) an order of the same court, also dated November 6, 1997, which denied, without a hearing, his motion to vacate the judgment of conviction pursuant to CPL 330.30, 330.40, 330.50 and 440.10.

ORDERED that the appeal from the order dated November 6, 1997, is dismissed, as no appeal lies as of right from that order (see, CPL 450.10) and we decline to grant leave to appeal;  and it is further,

ORDERED that the judgment is affirmed.

 The defendant contends that his trial counsel was ineffective because counsel failed to properly and adequately advise him with respect to a plea offer, and also pursued a justification defense which was clearly inapposite under the facts of the case.   These claims are meritless.   The record clearly shows that both the court and the defense counsel amply advised the defendant of the offer and the possible consequences of a conviction after trial, and that the defendant rejected the offer after an overnight adjournment had been granted to give him more time to consider the offer.   The defense counsel's decision to pursue a justification defense was also appropriate, since the defendant's version of the events was that the complainant was the initial aggressor.

Contrary to the defendant's contentions, the evidence adduced at trial was legally sufficient to establish beyond a reasonable doubt that the complainant suffered a “serious physical injury” within the meaning of Penal Law § 10.00(10), so as to sustain the defendant's conviction of assault in the first degree.

MEMORANDUM BY THE COURT.