PEOPLE v. WILLIAMS

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

The PEOPLE of the State of New York, Respondent, v. Billy WILLIAMS, Defendant-Appellant.

Decided: May 17, 2007

ANDRIAS, J.P., BUCKLEY, CATTERSON, MALONE, KAVANAGH, JJ. Steven Banks, The Legal Aid Society, New York (John Schoeffel of counsel), and White & Case LLP, New York (Catherine R. Castaldo of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jessica Slutsky of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered May 31, 2005, convicting defendant, after a jury trial, of assault in the second degree and two counts of endangering the welfare of a child, and sentencing him, as a second felony offender, to an aggregate term of 5 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The element of physical injury was established by evidence that defendant repeatedly struck the victim in the head and body with a phone, causing bleeding, dizziness, a bruise, a laceration, and substantial pain, as reflected in a hospital record, that persisted at least until the next day (see People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994];  People v. Stephenson, 36 A.D.3d 560, 828 N.Y.S.2d 391 [2007] ).

 The court properly declined to submit assault in the third degree as a lesser included offense.   There was no reasonable view of the evidence that the victim's injuries were caused by something other than being struck by the telephone, and such a theory could only be based on speculation as to an alternative scenario unsupported by any evidence (see People v. Negron, 91 N.Y.2d 788, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998];  People v. Ortiz, 25 A.D.3d 460, 808 N.Y.S.2d 660 [2006], lv. denied 6 N.Y.3d 836, 814 N.Y.S.2d 85, 847 N.E.2d 382 [2006];  People v. Luke, 8 A.D.3d 203, 779 N.Y.S.2d 194 [2004], lv. denied 3 N.Y.3d 740, 786 N.Y.S.2d 820, 820 N.E.2d 299 [2004] ).   Defendant did not preserve his additional argument that there was a reasonable view that the telephone was not, under the circumstances presented, a dangerous instrument, and we decline to review it in the interest of justice.   Were we to review this claim, we would similarly reject it.

 By failing to object, or by making unelaborated objections, defendant failed to preserve his challenges to the People's summation and we decline to review them in the interest of justice.   Were we to review these claims, we would find that even if some of the challenged remarks were inadvisable, they did not deprive defendant of a fair trial (see People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

 Defendant's challenge to the duration of the order of protection is not preserved because he did not raise this issue at sentencing or move to amend the final order of protection on this ground (see CPL 470.05[2];  People v. Nieves, 2 N.Y.3d 310, 316-318, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ), and we decline to consider it in the interest of justice.