| People v Zalevsky |
| 2011 NY Slip Op 02433 [82 AD3d 1136] |
| March 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gregory Zalevsky, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, andMelissa J. Feldman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.),rendered June 18, 2007, convicting him of murder in the second degree, assault in the seconddegree, and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress his statements to law enforcementauthorities.
Ordered that the judgment is modified, on the law, by vacating the conviction for assault inthe second degree, vacating the sentence imposed thereon, and dismissing that count of theindictment; as so modified, the judgment is affirmed.
The defendant contends that the evidence of "physical injury," an element of the crime ofassault in the second degree (see Penal Law § 120.05 [3]), was legally insufficient.Contrary to the People's contention, the defendant preserved this issue for appellate review byraising it in his written pro se motion submitted at the close of the People's case (see CPL470.05 [2]; People v Gray, 86 NY2d 10, 19-21 [1995]). Viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that it was legally insufficient to establish, beyond a reasonable doubt, that the peace officersustained a "physical injury" within the meaning of Penal Law § 10.00 (9). Physical injuryis defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00[9]). The peace officer testified that the defendant kicked him in the leg while he was restrainingthe defendant. The peace officer was "bruised up a little bit" at the location where the defendantkicked him, but he did not seek any medical treatment or miss any work. On direct examination,the peace officer did not testify as to the duration or severity of his pain. On cross examination hetestified to experiencing "minor pain" in his leg. This was insufficient to establish that the peaceofficer suffered a "physical injury" (see People v Scott, 70 AD3d 978 [2010]; Peoplev Baksh, 43 AD3d 1072 [2007]; People v Richmond, 36 AD3d 721, 722 [2007];People v Briggs, 285 AD2d 651, 652 [2001]; People v Barnes, 261 AD2d 409,410 [1999]; People v DiStefano, 252 AD2d 530 [1998]; People v Cheeks, 161AD2d 657 [1990]; cf. People v Chiddick, 8 NY3d 445, 448 [2007]). Accordingly, thedefendant's conviction of assault in the second degree must be vacated and that count of theindictment dismissed.[*2]
There is no merit to the defendant's contention that thetrial court failed to make a sufficient inquiry into the defendant's request to relieve his thirdappointed counsel and substitute new counsel (see People v Porto, 16 NY3d 93 [2010];People v Sides, 75 NY2d 822, 824 [1990]). In addition to considering the defendant'swritten motion, the trial court questioned the defendant at length, but the defendant failed todemonstrate good cause for substitution (see People v Linares, 2 NY3d 507, 510-512[2004]; People v Sides, 75 NY2d at 824; People v Sawyer, 57 NY2d 12, 18-19[1982], cert denied 459 US 1178 [1983]; People v Medina, 44 NY2d 199, 208[1978]). "The right of an indigent criminal defendant to the services of a court-appointed lawyerdoes not encompass a right to appointment of successive lawyers at defendant's option"(People v Sides, 75 NY2d at 824).
The record as a whole demonstrates that the defendant made a knowing, voluntary, andintelligent decision to waive his right to counsel and to proceed pro se (see People vProvidence, 2 NY3d 579, 582-583 [2004]; see also People v Arroyo, 98 NY2d 101,104 [2002]; People v Smith, 92 NY2d 516, 520-521 [1998]).
The defendant contends that the statements he made during the course of an interrogationmust be suppressed because he was not first advised of his Miranda rights (seeMiranda v Arizona, 384 US 436 [1966]). Given the legitimate concern of the police for thesafety of the victim, the questioning of the defendant regarding the victim's whereabouts waslawful (see New York v Quarles, 467 US 649 [1984]; People v Krom, 61 NY2d187 [1984]; People v Boyd, 3 AD3d 535, 536 [2004]; People v Molina, 248AD2d 489, 490 [1998]). Once the police found the victim's body in the defendant's apartmentand ascertained that she was dead, and after that information was communicated to the detectivesquestioning the defendant, the emergency no longer existed. The statements the defendant madefollowing the discovery of the body and before the detectives left the interrogation room for thescene of the crime should have been suppressed (see People v Krom, 61 NY2d at 200;People v Molina, 248 AD2d at 490). Nonetheless, the admission of these statementsconstituted harmless error in light of the overwhelming evidence of the defendant's guilt and thefact that there was no reasonable possibility that the error contributed to the defendant'sconviction (see People v Paulman, 5 NY3d 122, 134 [2005]; People v Krom, 61NY2d at 201; People v Crimmins, 36 NY2d 230, 237 [1975]). Significantly, contrary tothe defendant's contention, the statements he later made, after being given Mirandawarnings, were properly admitted into evidence, as the break in the interrogation wassufficiently pronounced to dissipate the taint of the Miranda violation (see People vWhite, 10 NY3d 286 [2008], cert denied 555 US —, 129 S Ct 221 [2008];People v Paulman, 5 NY3d 122 [2005]; People v Nelson, 73 AD3d 811 [2010];People v Foddrell, 65 AD3d 1375, 1377 [2009]).
The defendant's contentions raised in point III (C) of his pro se supplemental brief and hiscontentions that the trial court failed to charge the jury on the standards of proof for convictionand the material legal principles applicable to this particular case are unpreserved for appellatereview (see CPL 470.05 [2]), and we decline to reach these contentions in the exercise ofour interest of justice jurisdiction. The defendant's contention that the trial court erred in itssupplemental charge to the jury also is unpreserved for appellate review (see CPL 470.05[2]), and we decline to reach it in the exercise of our interest of justice jurisdiction (seeCPL 470.15 [6] [a]).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Covello, J.P., Dickerson, Eng and Sgroi, JJ., concur.