The People, etc., respondent, v. Gregory Zalevsky, appellant. (2011)

Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Gregory Zalevsky, appellant.

2007-05887 (Ind.No. 4320 /04)

Decided: March 22, 2011

JOSEPH COVELLO, J.P. THOMAS A. DICKERSON RANDALL T. ENG SANDRA L. SGROI, JJ.

Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Melissa J. Feldman of counsel), for respondent. The defendant contends that the evidence of “physical injury,” an element of the crime of assault in the second degree (see Penal Law § 120.05[3] ), was legally insufficient. Contrary to the People's contention, the defendant preserved this issue for appellate review by raising it in his written pro se motion submitted at the close of the People's case (see CPL 470.05[2]; People v Gray, 86 N.Y.2d 10, 19-21). Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally insufficient to establish, beyond a reasonable doubt, that the peace officer sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). The peace officer testified that the defendant kicked him in the leg while he was restraining the defendant. The peace officer was “bruised up a little bit” at the location where the defendant kicked him, but he did not seek any medical treatment or miss any work. On direct examination, the peace officer did not testify as to the duration or severity of his pain. On cross examination he testified to experiencing “minor pain” in his leg. This was insufficient to establish that the peace officer suffered a “physical injury” (see People v Scott, 70 AD3d 978; People v Baksh, 43 AD3d 1072; People v Richmond, 36 AD3d 721, 722; People v Briggs, 285 A.D.2d 651, 652; People v Barnes, 261 A.D.2d 409, 410; People v DiStefano, 252 A.D.2d 530; People v Cheeks, 161 A.D.2d 657; cf. People v Chiddick, 8 NY3d 445, 448). Accordingly, the defendant's conviction of assault in the second degree must be vacated and that count of the indictment dismissed. The record as a whole demonstrates that the defendant made a knowing, voluntary, and intelligent decision to waive his right to counsel and to proceed pro se (see People v Providence, 2 NY3d 579, 582-583; see also People v Arroyo, 98 N.Y.2d 101, 104; People v Smith, 92 N.Y.2d 516, 520-521). The defendant's contentions raised in point III(C) of his pro se supplemental brief and his contentions that the trial court failed to charge the jury on the standards of proof for conviction and the material legal principles applicable to this particular case are unpreserved for appellate review (see CPL 470.05 [2] ), and we decline to reach these contentions in the exercise of our interest of justice jurisdiction. The defendant's contention that the trial court erred in its supplemental charge to the jury also is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ). The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.

Argued-February 28, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered June 18, 2007, convicting him of murder in the second degree, assault in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities.

ORDERED that the judgment is modified, on the law, by vacating the conviction for assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

There is no merit to the defendant's contention that the trial court failed to make a sufficient inquiry into the defendant's request to relieve his third appointed counsel and substitute new counsel (see People v. Porto, 16 NY3d 93; People v. Sides, 75 N.Y.2d 822, 824). In addition to considering the defendant's written motion, the trial court questioned the defendant at length, but the defendant failed to demonstrate good cause for substitution (see People v. Linares, 2 NY3d 507, 510-512; People v. Sides, 75 N.Y.2d at 824; People v. Sawyer, 57 N.Y.2d 12, 18-19, cert denied 459 U.S. 1178; People v. Medina, 44 N.Y.2d 199, 208). “The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant's option” (People v. Sides, 75 N.Y.2d at 824).

The defendant contends that the statements he made during the course of an interrogation must be suppressed because he was not first advised of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436). Given the legitimate concern of the police for the safety of the victim, the questioning of the defendant regarding the victim's whereabouts was lawful (see New York v. Quarles, 467 U.S. 649; People v. Krom, 61 N.Y.2d 187; People v. Boyd, 3 AD3d 535, 536; People v. Molina, 248 A.D.2d 489, 490). Once the police found the victim's body in the defendant's apartment and ascertained that she was dead, and after that information was communicated to the detectives questioning the defendant, the emergency no longer existed. The statements the defendant made following the discovery of the body and before the detectives left the interrogation room for the scene of the crime should have been suppressed (see People v. Krom, 61 N.Y.2d at 200; People v. Molina, 248 A.D.2d at 490). Nonetheless, the admission of these statements constituted harmless error in light of the overwhelming evidence of the defendant's guilt and the fact that there was no reasonable possibility that the error contributed to the defendant's conviction (see People v. Paulman, 5 NY3d 122, 134; People v. Krom, 61 N.Y.2d at 201; People v. Crimmins, 36 N.Y.2d 230, 237). Significantly, contrary to the defendant's contention, the statements he later made, after being given Miranda warnings, were properly admitted into evidence, as the break in the interrogation was sufficiently pronounced to dissipate the taint of the Miranda violation (see People v. White, 10 NY3d 286, cert denied 129 S Ct 221; People v. Paulman, 5 NY3d 122; People v. Nelson, 73 AD3d 811; People v. Foddrell, 65 AD3d 1375, 1377).

COVELLO, J.P., DICKERSON, ENG and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

Was this helpful?

Why was this helpful?

Easy to understand

Solved my problem

Other

Why was this not helpful?

Missing the information I need

Too complicated / too many steps

Out of date

Other

Thank you for your feedback!

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go To Learn About The Law