| People v Palladino |
| 2008 NY Slip Op 00348 [47 AD3d 491] |
| January 17, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v MariePalladino, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel),for respondent.
Judgment, Supreme Court, New York County (Gerald Harris, J.), rendered September 25,2006, convicting defendant of criminal contempt in the first degree (four counts), resisting arrest,assault in the third degree, and harassment in the second degree (four counts), and sentencing herto an aggregate term of five years' probation, unanimously affirmed.
Defendant's legal sufficiency argument relating to the assault conviction is unpreserved andwe decline to review it in the interest of justice. As an alternative holding (see Bell vMiller, 500 F3d 149, 155 [2d Cir 2007]), we also reject it on the merits. The victim testifiedthat, as a result of being attacked and kicked in the groin by defendant, he felt like vomiting andstaggered against a pole. He was treated at a hospital, where an ultrasound revealed a contusionof his scrotum. The victim, who also sustained scratches and other bruises during the attack,received a tetanus shot and missed a day of work. There was also evidence that the victim was in"a lot of pain" for several weeks following this assault. These injuries were more than mere"petty slaps, shoves, kicks and the like" (Matter of Philip A., 49 NY2d 198, 200 [1980]),and satisfied the element of physical injury (see People v Chiddick, 8 NY3d 445 [2007]; People v Stapleton, 33 AD3d 464[2006]). Furthermore, the verdict was also not against the weight of the evidence (see Peoplev Bleakley, 69 NY2d 490, 495 [1987]).
Defendant's claim that the court should have instructed the jury, sua sponte, on the law ofjustification in defense of property (Penal Law § 35.10 [6]) is unpreserved and we declineto review it in the interest of justice. As an alternative holding, we also reject it on the merits.Such action would have unlawfully interfered with defense strategy since "a defendantunquestionably has the right to chart his own defense" (People v DeGina, 72 NY2d 768,776 [1988]), and would, in any event, have been unsupported by a reasonable view of theevidence. Defendant's claim that his counsel rendered ineffective assistance by failing to requestsuch an instruction is unreviewable on direct appeal because it involves matters outside therecord (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d998 [1982]).
The court properly balanced the probative value against the prejudicial effect of admittingbackground evidence relating to the deteriorating relationship between defendant and the victims[*2]and the circumstances leading up to the issuance of orders ofprotection against defendant. This evidence was relevant to defendant's motive and intent, tendedto complete the narrative, and was inextricably interwoven with the charged crimes (seee.g. People v Thomas, 26 AD3d241 [2006], lv denied 6 NY3d 898 [2006]). The court did not admit an excessiveamount of this evidence, and it minimized prejudice by means of a thorough limiting instruction(see e.g. People v Alas, 44AD3d 534 [2007]). Concur—Mazzarelli, J.P., Andrias, Catterson and McGuire, JJ.