| People v Richardson |
| 2008 NY Slip Op 10201 [57 AD3d 410] |
| December 30, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v WillieRichardson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered January 5,2006, convicting defendant, after a jury trial, of assault in the first degree (two counts) and gangassault in the first degree, and sentencing him, as a second violent felony offender, to concurrentterms of 18 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Contrary todefendant's argument, we find that the evidence supporting the element of serious physical injurywas overwhelming. Furthermore, the court properly declined to charge second-degree assault as alesser included offense because there is no reasonable view of the evidence, viewed in a lightmost favorable to defendant, that would support a finding that he only caused physical injury. Inaddition to abdominal injuries that could readily be inferred by a jury to have beenlife-threatening, the victim sustained prominent and disfiguring scars on his face and head,which, standing alone, constituted serious physical injury (see Penal Law § 10.00[10]), and there was no reasonable view that they only amounted to physical injury (see People v Vasquez, 25 AD3d465 [2006], lv denied 6 NY3d 854 [2006]; People v Lawrence, 256 AD2d358 [1998], lv denied 93 NY2d 973 [1999]). The record clearly reflects that the victimshowed these scars to the jury, and defendant's argument to the contrary is without merit.
The court properly permitted the jointly tried codefendant, over defendant's objection, toestablish that the victim told an interviewing prosecutor that the codefendant sold drugs fordefendant, but that the victim had never seen defendant supply the codefendant with drugs. Weneed not decide the extent, if any, that the principles of People v Molineux (168 NY 264[1901]) apply to uncharged crimes evidence elicited not by the prosecution, but by a codefendant,or address the circumstances under which one defendant may elicit evidence damaging to anotherwhere no pretrial severance motion has been made (see People v McGee, 68 NY2d 328,333-334 [1986]), because the brief and limited testimony could not have caused defendant anyprejudice. At most, this evidence tended to show that the victim had made an unsupportedaccusation against defendant, thereby evincing arguable bias and lack of credibility. Furthermore,any error in receipt of this evidence was harmless (see People v Crimmins, 36 NY2d 230[1975]). [*2]Defendant's constitutional claim, and his claim thatthe court should have provided a limiting instruction, are unpreserved and we decline to reviewthem in the interest of justice. As an alternative holding, we find no basis for reversal.
We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Gonzalez,Nardelli, Buckley and Acosta, JJ.