| People v Merzianu |
| 2008 NY Slip Op 10042 [57 AD3d 385] |
| December 23, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v MihaiMerzianu, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert Stolz, J.), rendered November 19,2007, convicting defendant, after a jury trial, of assault in the second degree, and sentencing himto a term of one day, with five years' probation, a $5,000 fine and 250 hours of communityservice, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility. Defendant was convicted of assault under a theory of recklessness(see Penal Law § 15.05 [3]; § 120.05 [4]), based on evidence establishingthat he deliberately engaged in a course of highly dangerous risk-creating conduct. During rushhour at the busy intersection of York Avenue and East 60th Street, defendant's car was behindseveral cars which were waiting for the left-turn signal to illuminate in one of two left-turninglanes on the southbound side of York Avenue leading to the northbound FDR Drive. Defendant'scar suddenly made a screeching noise, crossed over the double yellow line and proceeded thewrong way on the northbound side of the avenue, passing the cars waiting to turn, in an attemptto make the turn onto the ramp which led to the drive. This resulted in a collision with a vehicletraveling north on the avenue, which in turn, caused that vehicle to pin a traffic enforcementagent against a divider, causing him to sustain serious physical injuries. This evidence supportsthe conclusion that defendant was aware of, and consciously disregarded, the substantial andunjustifiable risk posed by his actions (see e.g. People v Carrington, 30 AD3d 175 [2006], lvdenied 7 NY3d 846 [2006]).
The court properly exercised its discretion in permitting a physician to testify about thevictim's injuries even though defendant had expressly conceded the element of serious physicalinjury (see People v Hills, 140 AD2d 71, 77-81 [1988], lv denied 73 NY2d 855[1988]; cf. Old Chief v United States, 519 US 172 [1997]). The court placedsuitable limits on the testimony, [*2]which was not undulyprejudicial, and it gave the jury an appropriate cautionary instruction that it is presumed to havefollowed (see People v Davis, 58 NY2d 1102, 1104 [1983]). Concur—Tom, J.P.,Saxe, Catterson, Moskowitz and DeGrasse, JJ.