PEOPLE v. SMITH

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Shelly SMITH, Jr., Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, HURLBUTT, KEHOE, AND PINE, JJ. Ronald C. Valentine, Public Defender, Lyons (Christine M. Cook of Counsel), for Defendant-Appellant. Richard M. Healy, District Attorney, Lyons (Melvin Bressler of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him, upon a jury verdict, of assault in the second degree (Penal Law § 120.05[3] ) and resisting arrest (§ 205.30), defendant contends that County Court's supplemental jury instruction on physical injury was erroneous, thereby depriving him of a fair trial.   We disagree.  “The court has discretion to respond as it deems proper to an inquiry by a deliberating jury (see, CPL 310.30), provided that the supplemental instruction is a meaningful response to the jury's inquiry” (People v. Williams, 277 A.D.2d 945, 945, 716 N.Y.S.2d 241, lv. denied 96 N.Y.2d 789, 725 N.Y.S.2d 654, 749 N.E.2d 223;  see People v. Malloy, 55 N.Y.2d 296, 302, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93).   We conclude that the court's supplemental instruction, viewed together with the court's main charge, adequately conveyed the applicable principles of law to the jury and was a meaningful response to the jury's inquiry (see People v. Durden, 5 A.D.3d 333, 775 N.Y.S.2d 248, lv. denied 2 N.Y.3d 798, 781 N.Y.S.2d 297, 814 N.E.2d 469, 3 N.Y.3d 658, 782 N.Y.S.2d 700, 816 N.E.2d 573;  see generally Malloy, 55 N.Y.2d at 301-302, 449 N.Y.S.2d 168, 434 N.E.2d 237).   Also contrary to defendant's contentions, the evidence of physical injury is legally sufficient to support the conviction of assault in the second degree (see e.g. People v. Daniels, 199 A.D.2d 332, 605 N.Y.S.2d 106, lv. denied 83 N.Y.2d 804, 611 N.Y.S.2d 140, 633 N.E.2d 495;  People v. Piersa, 196 A.D.2d 896, 897, 602 N.Y.S.2d 155, lv. denied 82 N.Y.2d 901, 610 N.Y.S.2d 168, 632 N.E.2d 478), and the verdict on that count is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, we conclude that the court did not err in sentencing defendant to a term of incarceration greater than that offered as a part of the plea bargain.  “Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater ․, it is ․ to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea” (People v. Pena, 50 N.Y.2d 400, 412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;  see People v. Urrutia, 2 A.D.3d 1475, 1476, 770 N.Y.S.2d 526, lv. denied 2 N.Y.3d 765, 778 N.Y.S.2d 784, 811 N.E.2d 46).  “[T]here is no indication that the sentence imposed was ‘the product of vindictiveness' ” (Urrutia, 2 A.D.3d at 1476, 770 N.Y.S.2d 526, quoting People v. Thompson, 299 A.D.2d 889, 890, 749 N.Y.S.2d 756, lv. denied 99 N.Y.2d 585, 755 N.Y.S.2d 721, 785 N.E.2d 743) or that the court “placed undue weight upon defendant's ill-advised decision to reject [a] favorable plea bargain and proceed to trial” (People v. Morton, 288 A.D.2d 557, 559, 734 N.Y.S.2d 249, lv. denied 97 N.Y.2d 758, 742 N.Y.S.2d 619, 769 N.E.2d 365, cert. denied 537 U.S. 860, 123 S.Ct. 237, 154 L.Ed.2d 99).

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

MEMORANDUM: