| People v Hernandez |
| 2007 NY Slip Op 07221 [43 AD3d 1412] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherHernandez, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedOctober 23, 2003. The judgment convicted defendant, upon a jury verdict, of assault in the firstdegree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofassault in the first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon inthe third degree (§ 265.02 [1]). Contrary to the contention of defendant, he receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Wenote in particular that defense counsel was not ineffective in failing to request a missing witnesscharge inasmuch as the People established that the witness in question was not available (seePeople v Gonzalez, 68 NY2d 424, 428 [1986]; People v Whetstone, 130 AD2d 969[1987], lv denied 70 NY2d 718 [1987]). Contrary to defendant's further contention, theprocedures used during the showup identifications were not unduly suggestive (see People v Delarosa, 28 AD3d1186 [2006], lv denied 7 NY3d 811 [2006]; People v Branch, 24 AD3d 1285 [2005]; People v Ponder, 19 AD3d 1041,1043 [2005], lv denied 5 NY3d 809 [2005]; see generally People v Ortiz, 90NY2d 533, 537 [1997]). Defendant failed to preserve for our review his contention concerningthe alleged legal insufficiency of the evidence of serious physical injury with respect to theassault conviction (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, theevidence of serious physical injury is legally sufficient to support the assault conviction, and theverdict is not against the weight of the evidence with respect to that element of assault in the firstdegree (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that County Court's refusal to suppress the statement he made toa police officer during booking requires reversal. We reject that contention. The statement wasessentially exculpatory, and we conclude that any error in the court's refusal to suppress thestatement is harmless beyond a reasonable doubt (see People v Pope, 241 AD2d 756,759-760 [1997], lv denied 91 NY2d 878, 1011 [1997]; see generally People vCrimmins, 36 NY2d 230, 237 [1975]). The sentence is not unduly harsh or severe, and thereis no indication in the record that the sentence is a product of the court's vindictiveness (see People v Carter, 38 AD3d1256, 1257 [2007], lv denied 8 NY3d 982 [2007]; People v Simon, 180AD2d 866, 867 [1992], lv denied 80 NY2d 838 [1992]). We have examined [*2]defendant's remaining contentions and conclude that they arelacking in merit. Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Pine, JJ.