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

The PEOPLE of the State of New York, Respondent, v. Rodrigo NERI, Defendant–Appellant.


Decided: October 10, 2019

Manzanet–Daniels, J.P., Kern, Oing, Singh, JJ. Janet E. Sabel, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (David A. Slott of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J.), rendered December 5, 2014, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of six months, concurrent with five years' probation, unanimously affirmed.

The verdict was not against the weight of the evidence (see generally People v. Danielson, 9 N.Y.3d 342, 348–49, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  The evidence in this case amply supports the conclusion that defendant caused physical injury within the meaning of Penal Law § 10.00(9) by cutting the victim's face.  The victim's scar constituted, at least, an impairment of physical condition (see People v. Clarke, 157 A.D.3d 616, 616–17, 70 N.Y.S.3d 2 [1st Dept. 2018], lv denied 31 N.Y.3d 1080, 79 N.Y.S.3d 101, 103 N.E.3d 1248 [2018]), and it may be reasonably inferred that the knife cut caused “more than slight or trivial pain” (People v. Montgomery, 173 A.D.3d 627, 628, 102 N.Y.S.3d 604 [1st Dept. 2019]).

The court properly declined to instruct the jury on the defense of justification for the charges that related to defendant's slashing of the victim with a knife, because there was no reasonable view of the evidence, when viewed most favorably to defendant, to support either the objective or subjective components of that defense.  At the time of the slashing, any threat posed by the victim had abated because defendant had not only disarmed the victim, but had rendered him apparently unconscious (see People v. Sparks, 132 A.D.3d 513, 514, 17 N.Y.S.3d 423 [1st Dept. 2015], affd 29 N.Y.3d 932, 51 N.Y.S.3d 14, 73 N.E.3d 354 [2017]).