| People v Smith |
| 2009 NY Slip Op 07691 [66 AD3d 1223] |
| October 29, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eric S. Smith,Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered August27, 2007 in Clinton County, upon a verdict convicting defendant of the crimes of assault in thethird degree and criminal mischief in the fourth degree.
After a jury trial, defendant was convicted of assault in the third degree and criminalmischief in the fourth degree and acquitted of endangering the welfare of a child upon evidencethat, on or about January 23, 2007, he punched the mother of his infant daughter and then brokeher cell phone in half after a dispute at the home of defendant's mother. Defendant was sentencedto a term of incarceration of one year for each conviction, to run concurrently, and ordered topay restitution. He now appeals and we affirm.
As defendant failed to specifically object at trial to the legal sufficiency of the evidence, thisissue is not preserved for our review (see People v Balram, 47 AD3d 1014, 1015 [2008], lvdenied 10 NY3d 859 [2008]). Upon review of the record, we find no reason to exercise ourinterest of justice jurisdiction to reverse on this issue (see People v Mann, 63 AD3d 1372, 1373 [2009]). Ourconsideration of the weight of the evidence reveals that although acquittal on all charges wouldnot have been unreasonable (see Peoplev Danielson, 9 NY3d 342 [2007]), reviewing the conflicting testimony and rationalinferences to be drawn from the evidence while [*2]giving properdeference to the jury's assessment of witness credibility (see People v Bleakley, 69NY2d 490, 495 [1987]), we find that the jury's verdict is not against the weight of the evidence.
The victim testified that defendant punched her in the head, knocking her to the floor,causing the victim to lose consciousness momentarily and sustain swelling, bruising and pain forseveral days, and that defendant subsequently broke her cell phone in half so she could not callthe police. The extent of the victim's injuries was corroborated by the State Trooper whoinvestigated her complaint against defendant, and the defense offered no alternate explanationfor the bruising that remained on the victim's forehead several days after the assault. Defendant'smother testified on behalf of her son but was impeached by her admission of having interferedwith a prior investigation of defendant by law enforcement, as well as an inconsistency betweenher trial testimony and her statement to the State Trooper investigating this incident. Defendant'sself-serving testimony was unpersuasive, especially when claiming that the victim's cell phonewas broken by the couple's 23-month-old daughter.
We are similarly unpersuaded by defendant's claim that he was deprived of a fair trial by thevictim's brief reference to defendant's prior incarceration. Again, no objection to the victim'stestimony was made at trial to preserve this issue for our review (see People v Brown,249 AD2d 835, 837 [1998]). Even were we to consider the merits, we would find no prejudicegiven defendant's repeated voluntary references in his own testimony to his prior incarcerations(see People v Deschamps, 170 AD2d 771, 773 [1991], lv denied 77 NY2d 994[1991]).
Nor was defendant's statutory right to a speedy trial violated. The People declared theirreadiness for trial on February 26, 2007, 25 days after defendant's February 1, 2007 arraignmentand well within the 90-day statutory period (see CPL 30.30 [1] [b]). That declaration wasnot rendered illusory by the People's subsequent request on May 23, 2007 for an adjournment todevelop pictures of the victim taken by the State Trooper, as those pictures had no bearing on thePeople's readiness and presented no impediment to the commencement of trial, which proceededon July 19, 2007 (see People v Anderson, 66 NY2d 529, 534 [1985]; People v Cain, 24 AD3d 889, 890[2005], lv denied 7 NY3d 753 [2006]; People v Rodriguez, 306 AD2d 686, 687[2003], lv denied 100 NY2d 624 [2003]). Even charging the People with the 34-dayperiod from their adjournment request until they filed a new statement of readiness on June 26,2007 (see People v Stirrup, 91 NY2d 434, 436-437 [1998]), this brings the total timechargeable to 59 days, still well within the 90-day statutory period.
Defendant also did not preserve, by objection, his claim that his constitutional right to aspeedy trial was violated. Even if we were to consider this argument, we would find thatdefendant suffered no constitutional injury (see People v Taranovich, 37 NY2d 442, 445[1975]).
Next, we note that defendant's ineffective assistance of counsel claim is based almostentirely on generalized allegations that do not identify a single defense, witness or motion thatcounsel failed to pursue, or any right on which counsel failed to advise defendant. The solefactual basis offered in support of this claim is counsel's failure to object to the victim'stestimony regarding defendant's prior incarceration. As we have already noted, any prejudice thatmight have attached to such testimony was nullified by defendant's voluntary and repeatedreferences to his prior incarcerations in his own testimony. Moreover, counsel orchestrated asuccessful defense against the child endangerment charge, argued successfully for defendant'spretrial release, argued successfully against the imposition of consecutive sentences andpresented a logical and vigorous, although unsuccessful, defense based on the victim's credibilityat trial. [*3]Viewing counsel's performance as a whole, we do notagree that defendant was denied the effective assistance of counsel (see People v Baldi,54 NY2d 137, 147 [1981]; People vFuller, 50 AD3d 1171, 1176-1177 [2008], lv denied 11 NY3d 788 [2008]).
Finally, given defendant's criminal history, we find no abuse of discretion or extraordinarycircumstances warranting a modification of the sentence in the interest of justice (see Peoplev Mann, 63 AD3d at 1374; Peoplev Jordan, 36 AD3d 948, 948 [2007]).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.