| People v Smalls |
| 2010 NY Slip Op 01104 [70 AD3d 1328] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelSmalls, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered April25, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the first degreeand endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, assault in the first degree (Penal Law § 120.10 [2]). We reject the contention ofdefendant that he was denied his right to effective assistance of counsel based on the failure ofdefense counsel to challenge the qualifications of the two medical witnesses. Defense counsel'sprimary strategy was to establish that defendant did not intend to disfigure the victim and that hisconduct was justified, and defense counsel pursued that strategy through, inter alia, vigorouscross-examination of the victim. Defendant thus failed " 'to demonstrate the absence of strategicor other legitimate explanations' for [defense] counsel's alleged shortcomings" (People vBenevento, 91 NY2d 708, 712 [1998]; see People v Becoats, 62 AD3d 1257 [2009], lv denied 12NY3d 912 [2009]). Moreover, defendant has failed to cite any authority to support his contentionthat only a plastic surgeon is qualified to testify concerning the seriousness and permanency ofan allegedly disfiguring injury. Viewing the evidence, the law and the circumstances of this caseas a whole and as of the time of the representation, we conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We further conclude that County Court properly allowed the People to present evidence ofdefendant's prior assaults against the victim. "Unlike evidence of general criminal propensity,evidence that a particular victim was the focus of a defendant's aggression may be highlyrelevant" (People v Ebanks, 60AD3d 462, 462 [2009], lv denied 12 NY3d 924 [2009]). Here, the prior incidents inwhich defendant bit the victim were relevant to establish the assaultive nature of theirrelationship and defendant's intent (seePeople v Meseck, 52 AD3d 948, 950 [2008]; People v Williams, 29 AD3d 1217, 1219 [2006], lv denied7 NY3d 797 [2006]; People v Jones, 289 AD2d 1010 [2001], lv denied 97 NY2d756 [2002]). The court properly balanced the probative value of the evidence against its potentialfor prejudice (see People v Mosley,55 AD3d 1371 [2008], lv denied 11 NY3d 856 [2008]), and its instructions to thejury minimized any prejudicial effect.[*2]
Contrary to defendant's contention, we conclude that thecourt properly admitted in evidence photographs of the victim's injury. "[P]hotographs areadmissible if they tend to prove or disprove a disputed or material issue . . . [and]should be excluded only if [their] sole purpose is to arouse the emotions of the jury andto prejudice the defendant" (People v Wood, 79 NY2d 958, 960 [1992] [internalquotation marks omitted]). Here, the photographs were relevant to an element of assault in thefirst degree, i.e., serious and permanent disfigurement (Penal Law § 120.10 [2]), and thusit cannot be said that their sole purpose was "to arouse the emotions of the jury and to prejudicethe defendant" (Wood, 79 NY2d at 960 [internal quotation marks omitted]; seePeople v Quijano, 240 AD2d 186 [1997], lv denied 90 NY2d 942 [1997]).
Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to establish permanent disfigurement inasmuch as he did not renew his motion for atrial order of dismissal after presenting evidence (see People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]). In any event, that contention lacks merit(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant also failed topreserve for our review his contention that the People failed to present legally sufficient evidenceto disprove his justification defense because he did not move for a trial order of dismissal on thatground (see generally People vHawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]).Viewing the evidence in light of the elements of the crime of assault as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
Finally, we reject the contention of defendant that the court abused its discretion in denyinghis motion pursuant to CPL 330.30 without conducting a hearing. Defendant's motion was basedsolely upon the allegation that the victim recanted her trial testimony and admitted that she bitdefendant before he bit her. It is well established that "recantation evidence is inherentlyunreliable . . . and insufficient alone to warrant [setting aside the verdict]"(People v Thibodeau, 267 AD2d 952, 953 [1999], lv denied 95 NY2d 805[2000]; see People v Jackson, 238 AD2d 877, 879 [1997], lv denied 90 NY2d859 [1997]). In any event, the victim testified at trial that she was the initial aggressor, and ittherefore "is not probable that defendant would receive a more favorable verdict at a retrial if[the victim] testified in accordance with [her alleged statement to defense counsel recanting hertrial testimony]" (Jackson, 238 AD2d at 878).
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Smith, J.P., Peradotto, Carni, Pine and Gorski, JJ.