THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. NICHOLAS WEST ALSO KNOWN AS EDWARD DESHAWN WEST DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. NICHOLAS A. WEST, ALSO KNOWN AS EDWARD DESHAWN WEST, DEFENDANT–APPELLANT.

KA 10–01017

Decided: June 19, 2015

PRESENT:  SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ. SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the first degree (Penal Law § 140.30[4] ), robbery in the first degree (§ 160.15[4] ), robbery in the second degree (§ 160.10 [1] ), and assault in the second degree (§ 120.05[2] ).   The conviction arises out of an incident in which defendant and two codefendants broke into an apartment and stole money and property from a woman inside, and defendant used a shotgun to shoot two men—only one of whom (hereafter, shooting victim) testified at trial—as the men fled down a hallway after coming to the apartment door during the robbery (see People v. McCullough, 128 AD3d 1510).

Contrary to defendant's contention, Supreme Court did not abuse its discretion in granting the People's challenge for cause of a prospective juror.  “In the case of a challenge for cause of an unsworn juror, a trial court ‘should lean toward disqualifying a prospective juror of dubious impartiality’ “ (People v. Traylor, 283 A.D.2d 1013, 1013, lv denied 96 N.Y.2d 869, quoting People v. Branch, 46 N.Y.2d 645, 651;  see People v. Arnold, 96 N.Y.2d 358, 362).   The prospective juror in question had worked at a law firm with codefendant's attorney several years before the trial and, “[a]lthough [such] a ‘nodding acquaintance’ with the [codefendant's] trial attorney does not compel disqualification as a matter of law” (People v. Purcell, 103 A.D.2d 938, 939;  see People v. Provenzano, 50 N.Y.2d 420, 425), it was within the court's discretion to determine that “the better choice [was] to exclude such a juror” (Purcell, 103 A.D.2d at 939).

Defendant failed to preserve for our review his contentions concerning alleged prosecutorial misconduct (see People v. Goley, 113 AD3d 1083, 1084;  People v. Golson, 93 AD3d 1218, 1219–1220, lv denied 19 NY3d 864), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant also failed to preserve for our review his contention that he was denied a fair trial by the court's questioning of witnesses (see People v. Charleston, 56 N.Y.2d 886, 887–888;  People v. Anderson, 114 AD3d 1083, 1087, lv. denied 22 NY3d 1196), and we conclude, in any event, that the court “did not unnecessarily or excessively interfere in the presentation of proof” or “convey to the jury [its] opinion concerning the credibility of the witnesses or the merits of the case” (People v. Brown, 256 A.D.2d 1109, 1109, lv denied 93 N.Y.2d 851;  see People v. Jamison, 47 N.Y.2d 882, 883–884;  see generally People v. Yut Wai Tom, 53 N.Y.2d 44, 56–58).

Contrary to defendant's contention with respect to his conviction of assault in the second degree, we conclude that the evidence is legally sufficient to establish that the shooting victim sustained a physical injury, i.e., that he experienced substantial pain (see Penal Law §§ 10.00[9];  120.05[2];  People v. Chiddick, 8 NY3d 445, 447).   The shooting victim testified that he was shot in the arm and leg, that being shot “[h]urt like hell” and “[f]elt like a bee sting with a thousand pounds of pressure added to it,” and that he received pain medication at a hospital, thereby establishing that the pain was “more than slight or trivial” (Chiddick, 8 NY3d at 447;  see People v. Stillwagon, 101 AD3d 1629, 1630, lv denied 21 NY3d 1020;  People v. Henderson, 77 AD3d 1311, 1311, lv denied 17 NY3d 953).   Moreover, viewing the evidence in light of the elements of the crime of assault in the second degree as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict with respect thereto is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   The jury was entitled to credit the shooting victim's description of his injuries and resulting pain (see People v. Guidice, 83 N.Y.2d 630, 636;  People v. Smith, 45 AD3d 1483, 1483, lv denied 10 NY3d 771).   Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court