| People v Casey |
| 2009 NY Slip Op 02486 [61 AD3d 1011] |
| April 2, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jared M.Casey, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria Esposito-Shea of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered December 21, 2007, upon a verdict convicting defendant of the crime of assault inthe second degree.
Defendant, his sister Gina Casey, and Jacob Brabant were each charged with assault in thesecond degree, arising out of an incident on July 29, 2006 outside the Kozy Korner Tavern in theCity of Ogdensburg, St. Lawrence County, during which the victim was beaten unconscious.Casey entered a guilty plea to third degree assault, and defendant and Brabant were jointly tried.The trial testimony established that prior to the assault, the victim had made a disparagingremark to defendant about his parole status, and words were exchanged. Casey then approachedthe victim, remarked about his getting her brother in trouble, and punched him in the face. Thevictim then exited the tavern. Shortly after, his girlfriend found him outside, unconscious. Hewas transported via ambulance to a local hospital and thereafter transported to a medical centerin the City of Syracuse, Onondaga County. As the victim was unable to fully recall the incidentat trial, the People introduced into evidence without objection his sworn written statement to anOgdensburg police officer prepared five days after the assault. According to the statement,defendant and Brabant stopped him as he approached the tavern's side entrance, Brabant punchedhim in the face knocking him down, and then all three defendants punched and kicked him untilhe lost consciousness. Upon his conviction, defendant was sentenced, as a second felony [*2]offender, to a five-year prison term with five years of postreleasesupervision and he was ordered to pay restitution. Defendant appeals, and we affirm.[FN*]
Initially, defendant challenges County Court's denial of his motion to dismiss based upon aCPL 30.30 speedy trial violation grounded upon the People's failure to be ready for trial withinsix months of the commencement of the action (see CPL 30.30 [1] [a]). As the actioncommenced on September 12, 2006, the People were required to be ready for trial 181 days lateron March 11, 2007. Their notice of readiness, filed on March 13, 2007, was deemed timely byCounty Court. Defendant argues that County Court improperly excluded certain periods of timethat were chargeable to the People (see CPL 30.30 [4] [b], [f]). While preindictmentdelay is ordinarily chargeable to the People, County Court properly ruled that the eight-day delayattributable to the adjournment of the grand jury proceedings to accommodate defense counsel'srequest to permit defendant, who was incarcerated, to testify was excludable from the relevantperiod (see CPL 30.30 [4] [b]; People v Meierdiercks, 68 NY2d 613, 614-615[1986]; People v Anderson, 252 AD2d 399, 400 [1998], lv denied 92 NY2d 1027[1998]; People v Daniels, 217 AD2d 448, 450 [1995], appeal dismissed 88 NY2d917 [1996]; People v Muhanimac, 181 AD2d 464, 465 [1992], lv denied 79NY2d 1052 [1992]). The court granted the continuance "at the request of, or with the consent of,the defendant or his counsel" (CPL 30.30 [4] [b]) and, consequently, despite the fact thatdefendant ultimately elected not to testify, the period was properly excludable.
Next, defendant challenges the legal sufficiency of the evidence, focusing on the lack ofproof that the victim sustained serious physical injury. The charge of assault in the second degreerequired proof that defendant, with intent to cause serious physical injury to the victim, causedsuch injury (see Penal Law § 120.05 [1]). Serious physical injury is defined as"physical injury which creates a substantial risk of death, or which causes death or serious andprotracted disfigurement, protracted impairment of health or protracted loss or impairment of thefunction of any bodily organ" (Penal Law § 10.00 [10]). Testimony of the victim, coupledwith medical records introduced at trial, established that he lost consciousness after the attack,was hospitalized and treated for a laceration to his face requiring 15 sutures and sustained skull,facial and jaw fractures and a closed head injury, resulting in a subdural hematoma. Upondischarge, he was prescribed pain medication and advised not to engage in strenuous activity,drive or return to work pending follow-up examinations. Moreover, although a year passed sincethe assault, he had not yet been cleared to return to work and continued to suffer dizzy spells,bleeding from his ear, and memory difficulty. Such evidence, when viewed most favorably to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), established a protractedimpairment of health (see People v Kern, 75 NY2d 638, 658 [1990], cert denied498 US 824 [1990]; People v Coy,45 AD3d 1050, 1051 [2007]; People v Jau Kud Su, 239 AD2d 703, 703-705 [1997],lv denied 90 NY2d 940 [1997]; compare People v Phillip, 279 AD2d 802,802-803 [2001], lv denied 96 NY2d 905 [2001]).
Defendant also contends that the verdict was contrary to the weight of the credible evidencein that it was grounded upon testimony which was inconsistent, incredible and should [*3]have been disregarded. While a different verdict would not havebeen unreasonable (see People vRomero, 7 NY3d 633, 643 [2006]; People v Bleakley, 69 NY2d 490, 495[1987]), after weighing the conflicting evidence, we are unpersuaded (see People v Danielson, 9 NY3d342, 348-350 [2007]). The victim identified defendant as one of his assailants within days ofthe attack and provided a sworn statement to police which recounted defendant's participation inthe assault. At trial, the victim testified similarly to the events leading up to the assault, althoughhe could not recall the details of the attack. The inconsistencies and shortcomings in histestimony were fully explored at trial and we do not find that his testimony was so inconsistentor at variance with his written statement as to be unworthy of belief or incredible as a matter oflaw (see People v Littebrant, 55AD3d 1151, 1154-1156 [2008]; People v Scanlon, 52 AD3d 1035, 1039 [2008], lv denied11 NY3d 741 [2008]). The jury had ample first-hand opportunity to observe his demeanor andassess his credibility and, according great deference to its determination, we cannot concludethat the jury failed to give the evidence the weight it deserved (see People v Bleakley, 69NY2d at 495; People v Portee, 56AD3d 947, 949 [2008]).
Nor was defendant deprived of meaningful representation (see People v Benevento,91 NY2d 708, 712-713 [1998]). Defense counsel made appropriate pretrial motions, pursued acogent alibi defense, made relevant objections, adequately cross-examined prosecution witnessesand moved for a trial order of dismissal (see People v Hall, 57 AD3d 1222, 1227 [2008]; People v Ryan, 46 AD3d 1125,1126 [2007], lv denied 10 NY3d 939 [2008]). Having pursued a reasonable andlegitimate but ultimately unsuccessful trial strategy, any error in counsel's failure to raise certainissues or objections cannot be said to have deprived defendant of a fair trial (see People v Caban, 5 NY3d 143,152 [2005]; People v Benevento, 91 NY2d at 712-714; People v Rodabaugh, 26 AD3d598, 600 [2006]; People vSingh, 16 AD3d 974, 977 [2005], lv denied 5 NY3d 769 [2005]).
Defendant's claim that recusal was required because the judge had previously prosecutedhim on an unrelated matter is unpreserved for appellate review (see People v Bigwarfe, 35 AD3d904, 905 [2006], lv denied 8 NY3d 878 [2007]; People v Rizzo, 5 AD3d 924, 925 [2004], lv denied 3NY3d 646 [2004]). In any event, disqualification was not required (see People v Jones,143 AD2d 465, 466-467 [1988]; see also Judiciary Law § 14). Moreover, none ofCounty Court's remarks at sentencing was indicative of bias against defendant and, therefore,recusal was not warranted on this basis (see People v Curkendall, 12 AD3d 710, 714 [2004], lvdenied 4 NY3d 743 [2004]; People v Rizzo, 5 AD3d at 925; People v Jones,143 AD2d at 467).
We are not persuaded by defendant's challenge to the sentence as harsh and excessive. Givendefendant's lengthy criminal history, including three felony convictions in 2003 and violation ofhis parole status at the time of this offense, we discern no extraordinary circumstances or abuseof discretion warranting a reduction in the sentence. Finally, defendant's challenge to the order ofrestitution in the amount of $16,024.35 is unpreserved (see People v Melino, 52 AD3d 1054, 1056 [2008], lvdenied 11 NY3d 791 [2008]; People v Waugh, 52 AD3d 853, 856 [2008], lv denied 11NY3d 796 [2008]).
Rose, Lahtinen, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Brabant's conviction is alsoaffirmed in a separate decision (People v Brabant, 61 AD3d 1014 [2009] [decidedherewith]).