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

The PEOPLE of the State of New York Respondent, v. SHU NG, Defendant–Appellant.


Decided: November 21, 2019

Richter, J.P., Manzanet–Daniels, Gische, Webber, Kern, JJ. Gotlin & Jaffe, New York (Daniel J. Gotlin of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered November 28, 2018, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  The People established beyond a reasonable doubt that defendant intentionally caused physical injury to the victim (see Penal Law § 120.05[1]).  During an argument between defendant and his girlfriend, defendant, without provocation, approached the victim and punched him in the face with such force that the victim was knocked back onto the pavement, causing permanent catastrophic brain injuries.  The jury was entitled to draw the reasonable inference that defendant intended the natural consequences of his acts (see generally People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425 [1980]), and the evidence also supports the jury's rejection of defendant's intoxication defense (see e.g. People v. Fawzi, 155 A.D.3d 548, 65 N.Y.S.3d 191 [1st Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018]).  Defendant's argument that a fist cannot qualify as a dangerous instrument is irrelevant, because defendant was not convicted of a crime containing the element of use of a dangerous instrument.

The court providently exercised its discretion in admitting limited evidence of defendant's athletic and martial arts abilities, consisting of an Instagram photo posted by defendant and a document in which he reported his martial arts skills.  This evidence was not received to establish a nonexistent “dangerous instrument” theory.  Instead, it was relevant to the element of intent in that it tended to show that serious physical injury was a natural consequence of defendant's act and that defendant was aware of this (see People v. Scott, 47 A.D.3d 1016, 1020–1021, 849 N.Y.S.2d 335 [3d Dept 2008], lv denied 10 N.Y.3d 870, 860 N.Y.S.2d 496, 890 N.E.2d 259 [2008];  see also People v. Ford, 114 A.D.3d 1273, 1274, 980 N.Y.S.2d 219 [4th Dept. 2014], lv denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014]).  To the extent that defendant is arguing that the particular evidence admitted by the court lacked probative value on this issue, we conclude that the considerations raised by defendant went to the weight to be given by the jury to this evidence, not its admissibility.

Defendant did not preserve his claim that a witness improperly testified as an expert, or his challenges to the People's summation, and we decline to review them in the interest of justice.  As an alternative holding, we reject them on the merits.