| People v Peterson |
| 2010 NY Slip Op 02216 [71 AD3d 1419] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CarlosPeterson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedSeptember 17, 2008. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree (two counts), criminal mischief in the fourth degree, resisting arrest and criminaltrespass in the third degree.
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, two counts of assault in the second degree (Penal Law § 120.05 [3]). Contrary todefendant's contention, the assault conviction is supported by legally sufficient evidenceestablishing that both victims, each of whom was a police officer, sustained a physical injury(see § 10.00 [9]; People v Wiggins, 265 AD2d 905 [1999], lv denied94 NY2d 908 [2000]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]).One victim testified that, as a result of the assault by defendant, he sustained an elbow injury thatrequired medical treatment, physical therapy and the use of anti-inflammatory medication. Fourmonths after the incident, that victim was required to use an arm band to support the tendons inhis arm and to enable him to use his arm effectively. The other victim testified that defendantpunched him in the face with his closed fist, thereby causing swelling, bruising and a black eye.We conclude that the victims' injuries "were more than mere petty slaps, shoves, kicks and thelike" (People v Oree, 58 AD3d473, 474 [2009], lv denied 12 NY3d 819 [2009] [internal quotation marks omitted]),and we see no basis to disturb the jury's verdict (see People v Fortuna, 188 AD2d 683,684 [1992], lv denied 81 NY2d 839 [1993]).
Defendant further contends that he was deprived of his right to a fair trial by prosecutorialmisconduct. To the extent that defendant preserved for our review his contention with respect tothe prosecutor's comments on summation, comparing "facts" to "fiction," we conclude that thosecomments were within the wide rhetorical bounds afforded the prosecutor (see People v Lynch, 60 AD3d1479, 1480-1481 [2009], lv denied 12 NY3d 926 [2009]). Defendant failed topreserve for our review his contention that the prosecutor improperly shifted the burden of proofto defendant on summation (see CPL 470.05 [2]), and we decline to exercise our powerto review that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). We agree with defendant that the prosecutor's cross-examination of defendantconcerning his failure to call [*2]witnesses was improperinasmuch as the questioning may have appeared to shift the burden of proof to defendant (see People v Hendrie, 24 AD3d871, 873 [2005], lv denied 6 NY3d 776 [2006]). Immediately after that line ofquestioning, however, County Court issued a curative instruction, advising the jury that thePeople and not defendant bore the burden of proof and that defendant had no obligation to callwitnesses. "In order to believe that defendant bore any burden to [call] witnesses, the jury wouldhave had to ignore not only the curative instruction, but also the detailed subsequent instructionson the burden of proof and the presumption of innocence" (People v Diotte, 63 AD3d 1281, 1283 [2009]). Furthermore, theprosecutor's line of questioning was brief and isolated (see Hendrie, 24 AD3d at 873). Inview of all the circumstances, we conclude that "defendant's right to a fair trial was notcompromised" (Diotte, 63 AD3d at 1283).
Finally, we reject defendant's contention that the sentences imposed on the assault countsmust run concurrently. "Where, as here, separate acts are committed against different victimsduring the same criminal transaction, the court may properly impose consecutive sentences in theexercise of its discretion" (People vLemon, 38 AD3d 1298, 1299 [2007], lv denied 9 NY3d 846, 962 [2007]).Present—Scudder, P.J., Centra, Carni and Pine, JJ.