PEOPLE v. HERNANDEZ

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

The PEOPLE of the State of New York, Respondent, v. Christopher HERNANDEZ, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, FAHEY, AND PINE, JJ. David M. Giglio, Utica, for Defendant-Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of assault in the first degree (Penal Law § 120.10[1] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   Contrary to the contention of defendant, he received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). We note in particular that defense counsel was not ineffective in failing to request a missing witness charge inasmuch as the People established that the witness in question was not available (see People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583;  People v. Whetstone, 130 A.D.2d 969, 516 N.Y.S.2d 151, lv. denied 70 N.Y.2d 718, 519 N.Y.S.2d 1055, 513 N.E.2d 1323).   Contrary to defendant's further contention, the procedures used during the showup identifications were not unduly suggestive (see People v. Delarosa, 28 A.D.3d 1186, 813 N.Y.S.2d 610, lv. denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802;  People v. Branch, 24 A.D.3d 1285, 808 N.Y.S.2d 848;  People v. Ponder, 19 A.D.3d 1041, 1043, 796 N.Y.S.2d 472, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161;  see generally People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337).   Defendant failed to preserve for our review his contention concerning the alleged legal insufficiency of the evidence of serious physical injury with respect to the assault conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the evidence of serious physical injury is legally sufficient to support the assault conviction, and the verdict is not against the weight of the evidence with respect to that element of assault in the first degree (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant further contends that County Court's refusal to suppress the statement he made to a police officer during booking requires reversal.   We reject that contention.   The statement was essentially exculpatory, and we conclude that any error in the court's refusal to suppress the statement is harmless beyond a reasonable doubt (see People v. Pope, 241 A.D.2d 756, 759-760, 660 N.Y.S.2d 466, lv. denied 91 N.Y.2d 878, 668 N.Y.S.2d 576, 691 N.E.2d 648, 91 N.Y.2d 1011, 676 N.Y.S.2d 139, 698 N.E.2d 968;  see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).   The sentence is not unduly harsh or severe, and there is no indication in the record that the sentence is a product of the court's vindictiveness (see People v. Carter, 38 A.D.3d 1256, 1257, 834 N.Y.S.2d 886, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 486, 869 N.E.2d 662;  People v. Simon, 180 A.D.2d 866, 867, 580 N.Y.S.2d 493, lv. denied 80 N.Y.2d 838, 587 N.Y.S.2d 922, 923, 600 N.E.2d 649, 650).   We have examined defendant's remaining contentions and conclude that they are lacking in merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: