PEOPLE v. SMITH (2008)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered October 20, 2005, convicting him of criminal contempt in the first degree, criminal contempt in the second degree (six counts), and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review (see CPL 470.05 [2];  People v. Ruiz, 36 A.D.3d 722, 723, 831 N.Y.S.2d 178;  People v. Rambali, 27 A.D.3d 582, 583, 813 N.Y.S.2d 103;  People v. Xavier V., 10 A.D.3d 427, 780 N.Y.S.2d 785).   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, beyond a reasonable doubt, that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9) (see Penal Law § 120.00[1];  People v. Butcher, 8 A.D.3d 293, 777 N.Y.S.2d 310;  People v. Baker, 204 A.D.2d 340, 614 N.Y.S.2d 152), and to sustain his convictions of criminal contempt in the first degree (see People v. Escalona, 24 A.D.3d 687, 805 N.Y.S.2d 845;  People v. Johnson, 261 A.D.2d 557, 692 N.Y.S.2d 82;  People v. Ruiz, 258 A.D.2d 675, 683 N.Y.S.2d 922;  People v. Eichele, 258 A.D.2d 592, 593, 685 N.Y.S.2d 739) and criminal contempt in the second degree (see People v. Gelfand, 31 A.D.3d 664, 818 N.Y.S.2d 605;  People v. Squires, 308 A.D.2d 553, 554, 764 N.Y.S.2d 834;  People v. McDonald, 287 A.D.2d 655, 657, 732 N.Y.S.2d 32).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), 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, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Pettengill, 36 A.D.3d 1070, 1071, 828 N.Y.S.2d 643;  People v. Bartello, 243 A.D.2d 483, 484, 665 N.Y.S.2d 281).

 The defendant's argument that the verdict was inconsistent is unpreserved for appellate review because he failed to raise this issue before the discharge of the jury (see People v. Moses, 36 A.D.3d 720, 826 N.Y.S.2d 746).   In any event, the verdict was not inconsistent (see People v. Dominique, 36 A.D.3d 624, 625, 831 N.Y.S.2d 85).

 Contrary to the defendant's contention, there is no exception to the preservation requirement for claims regarding the trial court's failure to conduct an inquiry of an allegedly unqualified alternate juror (see People v. Quinones, 41 A.D.3d 868, 840 N.Y.S.2d 804;  People v. Morales, 36 A.D.3d 631, 632-633, 831 N.Y.S.2d 77;  People v. Middleton, 18 A.D.3d 670, 795 N.Y.S.2d 649), or to adequately inquire into the matter of premature juror deliberations (see People v. Paccione, 295 A.D.2d 450, 451, 743 N.Y.S.2d 561).   Since the defendant neither requested that inquiry be made of the alternate juror nor moved for a mistrial on the ground that the court failed to adequately inquire into the matter of premature juror deliberations, the issue of whether the defendant was denied a fair trial on those grounds is not properly before this Court (see CPL 470.05[2] ), and we decline to review it in the exercise of our interest of justice jurisdiction.

 The defendant's request for a missing witness charge as to three police officers was untimely (see People v. Woods, 275 A.D.2d 332, 333, 712 N.Y.S.2d 407) and, in any event, was properly denied since the uncalled witnesses were not knowledgeable about material facts in the case (see People v. Herrera, 285 A.D.2d 613, 614, 728 N.Y.S.2d 745;  People v. Lee, 217 A.D.2d 637, 638-639, 630 N.Y.S.2d 82;  People v. Cephas, 207 A.D.2d 903, 904, 616 N.Y.S.2d 668;  People v. Baldo, 107 A.D.2d 751, 752, 484 N.Y.S.2d 114), or their testimony merely would have been cumulative (see People v. Miller, 282 A.D.2d 691, 723 N.Y.S.2d 684;  People v. Lee, 217 A.D.2d at 638-639, 630 N.Y.S.2d 82).

The defendant's trial attorney provided meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Waisome, 40 A.D.3d 892, 834 N.Y.S.2d 484).

 The defendant failed to preserve for appellate review his contention that the sentence imposed by the County Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see People v. Hurley, 75 N.Y.2d 887, 554 N.Y.S.2d 469, 553 N.E.2d 1017;  People v. Gillian, 28 A.D.3d 577, 816 N.Y.S.2d 84;  People v. Chapero, 23 A.D.3d 492, 493, 805 N.Y.S.2d 596).   In any event, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is no indication that the defendant was punished for asserting his right to proceed to trial (see People v. Pena, 50 N.Y.2d 400, 411, 429 N.Y.S.2d 410, 406 N.E.2d 1347;  People v. Davis, 27 A.D.3d 761, 762, 815 N.Y.S.2d 612).   Moreover, the sentence imposed was not excessive (see People v. Felix, 58 N.Y.2d 156, 460 N.Y.S.2d 1, 446 N.E.2d 757;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.