| People v Perser |
| 2009 NY Slip Op 07883 [67 AD3d 1048] |
| November 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RonaldPerser, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Shannon K. Corbitt of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered May 14, 2008, upon a verdict convicting defendant of the crimes of assault in the thirddegree and aggravated criminal contempt in the first degree.
Late in the evening of May 5, 2007, defendant entered the apartment of his estranged wife(hereinafter the victim), who had within the previous year obtained an order of protection againsthim, and he allegedly proceeded to strike her repeatedly in the face and body with his fist, chokeher, push her to the floor, bite her face and back, and burn her hand by placing it on a hot stoveburner. He was charged in a four-count indictment with burglary in the first degree, assault in thesecond degree (for allegedly burning her hand on the stove), assault in the third degree (forphysical injuries allegedly caused by his striking, choking, biting and pushing her), andaggravated criminal contempt in the first degree. Following a jury trial, he was found not guiltyof the first two counts, but guilty of the last two counts. He was sentenced to concurrent prisonterms of 2
We affirm. Defendant contends that the jury verdict was not supported by legally sufficientevidence and that it was against the weight of the evidence. Specifically, he argues that, as to theassault conviction, the People failed to establish that the victim suffered a physical [*2]injury and, as to the aggravated criminal contempt conviction, thePeople did not prove his intent to violate the order of protection. The general dismissal motionmade at trial was insufficient to preserve the legal sufficiency issue for our review (seePeople v Finger, 95 NY2d 894, 895 [2000]; People v Gray, 86 NY2d 10, 19-20[1995]), and our examination of the record fails to persuade us to exercise our interest of justicejurisdiction to reverse on this ground (see People v Gratton, 51 AD3d 1219, 1220 [2008], lvdenied 11 NY3d 736 [2008]; People v Thomas, 21 AD3d 643, 645 [2005], lv denied 6NY3d 759 [2005]). As to the weight of the evidence issue, for which there is no preservationrequirement (see People vDanielson, 9 NY3d 342, 348 [2007]; People v Mann, 63 AD3d 1372, 1373 [2009]), since it would nothave been unreasonable for the jury to have reached a different verdict, we "must, like the trierof fact below, weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]).
Physical injury is an element of assault in the third degree (see Penal Law §120.00 [1]) and is defined as "impairment of physical condition or substantial pain" (Penal Law§ 10.00 [9]). The victim testified that defendant, among other things, punched her multipletimes in the face and other various parts of her body, choked her, and bit her face and back. Sherelated the pain that she experienced and described the bruises that she sustained on her face,breasts and buttocks. She was transported by ambulance to a hospital for treatment. The variousmedical care providers, as well as investigating police officers, reported observing an assortmentof bruises and bite marks. Upon considering this proof and the conflicting evidence elicited bydefendant, the weight of the evidence supports the jury's finding that the victim suffered aphysical injury (see People vChiddick, 8 NY3d 445, 447 [2007]; People v Foster, 52 AD3d 957, 959-960 [2008], lv denied11 NY3d 788 [2008]; People v Brown, 243 AD2d 749, 749-750 [1997]).
We further find unavailing defendant's contention that, because he testified that he thoughtthe protective order had expired, the aggravated criminal contempt conviction was against theweight of the evidence. "A person is guilty of aggravated criminal contempt when. . . in violation of a duly served order of protection, or such order of which thedefendant has actual knowledge because he or she was present in court when such order wasissued . . . he or she intentionally or recklessly causes physical injury or seriousphysical injury to a person for whose protection such order was issued" (Penal Law §215.52 [1]; see People v Coston, 55AD3d 943, 945 [2008], lv denied 11 NY3d 924 [2009]). The proof at trialestablished that Family Court had issued an order of protection for the victim against defendanton June 8, 2006 for a period of one year, defendant was present in court when the order wasissued, he was personally served with the order on that date, and it was still in effect when theassault occurred on May 5, 2007. The jury's determination to credit this proof and convictdefendant upon the aggravated criminal contempt charge is fully supported by the weight of theevidence.
Defendant's contention that County Court improperly restricted his cross-examination of aphysician who treated the victim is without merit. Counsel was pursuing a line of questionsregarding the burn to the victim's hand that had no relevance to the charged crimes. In any event,the issue was not preserved since counsel withdrew the question following the objection (see People v Thigpen, 30 AD3d1047, 1048 [2006], lv denied 7 NY3d 818 [2006]) and, even if there had been error,it would be harmless since defendant was acquitted of the charge of assault in the second degreewhich set forth the allegation regarding the burn (see People v Perkins, 24 AD3d 890, 891 [2005], lv denied6 NY3d 816 [2006]).[*3]
The sentence imposed did not constitute an abuse ofdiscretion and we discern no extraordinary circumstances meriting a reduction thereof as urgedby defendant (see People vGorham, 17 AD3d 858, 861 [2005]).
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.