PEOPLE v. PISCIOTTA

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

The PEOPLE of the State of New York, Respondent, v. Nicholas PISCIOTTA, Defendant-Appellant.

Decided: November 30, 2006

TOM, J.P., SAXE, FRIEDMAN, CATTERSON, McGUIRE, JJ. Mark S. DeMarco, Bronx, for appellant. Robert T. Johnson, District Attorney, Bronx (Maria I. Immitt of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered February 6, 2003, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second felony offender, to a term of 7 years, unanimously affirmed.

The verdict was based on legally sufficient evidence.   The evidence established that, among other acts of violence, defendant threw a board at the victim, with the intent to cause physical injury thereby.   The evidence, including medical testimony, also warranted the conclusion (see People v. Williams, 84 N.Y.2d 925, 620 N.Y.S.2d 811, 644 N.E.2d 1367 [1994] ) that some of the victim's injuries resulted from being struck by the board.   We further conclude that these injuries satisfied the requirement of “physical injury” (see Penal Law § 10.00[9];  People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ).

The challenged portions of the People's summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  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 argument concerning jury selection is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it on the same grounds upon which we rejected a similar argument on the jointly tried codefendants' appeal (People v. Oliveri, 29 A.D.3d 330, 813 N.Y.S.2d 435 [2006], lv. denied 7 N.Y.3d 760, 819 N.Y.S.2d 886, 853 N.E.2d 257, 7 N.Y.3d 792, 821 N.Y.S.2d 822, 854 N.E.2d 1286 [2006] ).