| People v Wright |
| 2018 NY Slip Op 02500 [160 AD3d 1110] |
| April 12, 2018 |
| Appellate Division, Third Department |
[*1](April 12, 2018)
| The People of the State of New York,Respondent, v Darryl Wright, Appellant. |
John R. Trice, Elmira, for appellant, and appellant pro se.
Stephen K. Cornwell Jr., District Attorney, Binghamton (David M. Petrush of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 10, 2014, upon a verdict convicting defendant of the crimes of assault in thesecond degree and criminal possession of a weapon in the fourth degree.
Defendant and the victim were involved in an altercation where the victim was slashed in theface with a box cutter. As a consequence of this incident, defendant was charged by indictmentwith two counts of assault in the first degree and one count of criminal possession of a weapon inthe fourth degree. Following a jury trial, defendant was acquitted on both counts of assault in thefirst degree, but was convicted of the lesser included offense of assault in the second degree withrespect to count 1 of the indictment. Defendant was also convicted of criminal possession of aweapon in the fourth degree. County Court thereafter sentenced defendant, as a second violentfelony offender, to an aggregate prison term of seven years, to be followed by five years ofpostrelease supervision. Defendant now appeals.
We reject defendant's assertion the verdict was against the weight of the evidence.[FN1] As [*2]relevant here, assault in the second degree requires that the Peopleestablish that defendant, with the intent to cause physical injury to another person, caused suchinjury to such person with a dangerous instrument (see Penal Law § 120.05[2]). Criminal possession of a weapon in the fourth degree, as pertinent here, requires that thePeople prove that defendant possessed a razor or any other dangerous or deadly instrument orweapon with the intent to use it unlawfully against another person (see Penal Law§ 265.01 [2]).
The victim testified at trial that defendant, who appeared intoxicated, approached him andaccused him of stealing his wallet. The victim denied doing so and, when he started to walkaway, defendant punched him in the jaw. The victim testified that he "hit [defendant] back andthen [defendant] pulled out the box cutter." The victim told defendant to drop the knife and "fightlike a real man." Defendant, however, swung at the victim with the box cutter. An eyewitness tothe altercation testified that defendant told the victim, "I'm going to cut you." Defendant cut thevictim's face and the victim was informed by his friends that he was bleeding. The victimretreated from the altercation, grabbed his face, saw blood and went to the hospital. The nursewho treated the victim testified that the victim's injury was consistent with a razor blade cut. Apolice officer who responded to the scene testified that a search of defendant's body revealed abox cutter in his right pocket with a reddish-brown stain.
Although an acquittal would not have been unreasonable, viewing the foregoing evidence ina neutral light, we are satisfied that the jury's verdict with respect to the assault in the seconddegree conviction was supported by the weight of the evidence (see People v Cruz, 152 AD3d 822,823 [2017], lv denied 30 NY3d 1018 [2017]; People v Braithwaite, 126 AD3d 993, 994-995 [2015], lvdenied 25 NY3d 1198 [2015]; People v Shannon, 273 AD2d 505, 506 [2000], lvdenied 95 NY2d 892 [2000]). Nor do we find merit in defendant's assertion that the verdictconvicting him of criminal possession of a weapon in the fourth degree was against the weight ofthe evidence (see People v Soriano,121 AD3d 1419, 1421 [2014]; People v Taylor, 118 AD3d 1044, 1047 [2014], lv denied23 NY3d 1043 [2014]; People vSoares, 80 AD3d 631, 632 [2011], lv denied 16 NY3d 863 [2011]). Even thoughdefendant testified at trial and gave a different version of the incident with the victim, the jurywas entitled to reject his account (seePeople v Pine, 126 AD3d 1112, 1115 [2015], lv denied 27 NY3d 1004 [2016];People v Colburn, 123 AD3d1292, 1294 [2014], lv denied 25 NY3d 950 [2015]). Furthermore, to the extent thatdefendant challenges the truthfulness of certain witnesses called by the People or points toinconsistencies in their testimony, we defer to the jury's resolution of credibility issues (see People v Anthony, 152 AD3d1048, 1053 [2017], lv denied 30 NY3d 978 [2017]; People v Murrell, 148 AD3d 1296,1298 [2017]; People v Morris, 140AD3d 1472, 1475 [2016], lv denied 28 NY3d 1074 [2016]).
We reject defendant's claim that he received the ineffective assistance of counsel based onhis counsel's failure to cross-examine the victim about statements that he made before the grandjury (see People v Wiltshire, 96AD3d 1227, 1229 [2012], lv denied 22 NY3d 1204 [2014]; People v Cancer, 16 AD3d 835,840 [2005], lv denied 5 NY3d 826 [2005]). The other instances of alleged ineffectivenessraised by defendant concern trial strategies, and defendant failed to show the absence of strategicor other legitimate explanations for such strategies (see People v Mesko, 150 AD3d 1412, 1414-1415 [2017], lvdenied 29 NY3d 1131 [2017]; People v Umana, 143 AD3d 1174, 1175 [2016], lv denied29 NY3d 1037 [2017]). Our review of the record discloses that defense counsel made pretrialmotions, submitted proof on defendant's [*3]behalf and madecogent opening and closing statements. As such, we find no merit in defendant's assertion that hewas deprived of meaningful representation (see People v Anthony, 152 AD3d at1053-1054; People v Hook, 80AD3d 881, 883-884 [2011], lv denied 17 NY3d 806 [2011]).
Finally, the sentence is not harsh or excessive. Even though County Court imposed themaximum possible sentence, taking into account defendant's criminal history and the violentnature of the acts at issue, we perceive no abuse of discretion or any extraordinary circumstanceswarranting the reduction of defendant's sentence (see People v Launder, 132 AD3d 1151, 1154-1155 [2015], lvdenied 27 NY3d 1153 [2016]; People v Davis, 114 AD3d 1003, 1004 [2014], lv denied 23NY3d 962 [2014]).[FN2]Defendant's remaining contentions, including those raised in his pro se supplemental briefs, havebeen considered and lack merit.
McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:To the extent that defendantargues that the verdict was not supported by legally sufficient evidence, defendant failed topreserve this argument for our review (see People v Wynn, 149 AD3d 1252, 1254 [2017], lvdenied 29 NY3d 1136 [2017]; People v Ressy, 141 AD3d 839, 840 [2016], lv denied 28NY3d 1030 [2016]).
Footnote 2:Although the presentenceinvestigation report contained a factual error, the record does not indicate that such errorimpacted the imposed sentence (seePeople v Swartz, 23 AD3d 917, 918 [2005], lv denied 6 NY3d 818 [2006]).