| People v Noguel |
| 2012 NY Slip Op 02216 [93 AD3d 1319] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Felix Noguel,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered May31, 2006. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of assault in the second degree(Penal Law § 120.05 [2]), arising from an incident in which he struck a homelesspanhandler in the head with a brick. Defendant contends that County Court should havedischarged a sworn juror who disclosed at trial that he knew the victim from a homeless shelterat which the juror volunteered. As defendant correctly concedes, he waived that contention byagreeing with the prosecutor that the juror was not "grossly unqualified" to continue servingwithin the meaning of CPL 270.35 (1) (see People v Hinton, 302 AD2d 1008, 1008-1009[2003], lv denied 100 NY2d 539 [2003]).
We reject defendant's further contention that he was deprived of effective assistance ofcounsel based on, inter alia, defense counsel's failure to challenge the juror in question. Althoughthe juror disclosed during voir dire that he volunteered at a homeless shelter, he did not realizethat he knew the victim until he saw a photograph of him at trial. The juror promptly notified thecourt that he recognized the victim from the photograph and, during a subsequent in camerainterview, he stated that he might have "sensitivity" to the victim, whom he had met "a number oftimes" at the homeless shelter. The juror unequivocally stated, however, that he could disregardwhat he knew about the victim and render a verdict based solely on the evidence at trial. Thejuror further stated without equivocation that he could follow the court's instructions to render averdict free from sympathy to anyone. It is well settled that defense counsel cannot be deemedineffective for failing to "make a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287[2004], rearg denied 3 NY3d 702 [2004]; see People v Caban, 5 NY3d 143, 152 [2005]). Under thecircumstances of this case, we conclude that a challenge to the fitness of the sworn juror inquestion would not have been successful.
Defendant's reliance on People vWlasiuk (90 AD3d 1405 [2011]) in support of his ineffective [*2]assistance of counsel contention is misplaced. The juror in thatcase, a physician, failed to disclose during voir dire that he had been interviewed by the policeduring their investigation of the case, that he worked with the victim, that the defendant'schildren were his patients and that he knew of the defendant's reputation for subjecting thevictim, his wife, to prior acts of violence (id. at 1408-1409). Here, in contrast, the juror inquestion did not withhold any information during voir dire and did not know anything about thecase before the trial commenced. Further, the defense attorney in Wlasiuk made anadditional error that the Third Department determined to have greatly prejudiced the defendant(id. at 1412-1413). We cannot conclude that any of defendant's remaining complaintsconcerning defense counsel's performance have merit.
We note that defense counsel successfully moved to suppress defendant's inculpatorystatement to the police, in which he admitted that he threw a brick at the victim and might havepunched and kicked him as well. Defense counsel also obtained an acquittal for defendant on thetop count of the indictment, charging him with assault in the first degree (Penal Law §120.10 [1]), a class B violent felony offense that carries a mandatory minimum determinatesentence of at least five years in prison and a maximum determinate sentence of 25 years inprison (§ 70.02 [1] [a]; [3] [a]). Defendant was convicted of a lesser included felonyoffense and sentenced to only five months in jail and a term of probation. When viewed as awhole, the record demonstrates that defense counsel provided meaningful representation (see People v Martinez, 73 AD3d1432, 1433 [2010], lv denied 15 NY3d 807 [2010]; see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Viewing the evidence in light of the elements of the crime 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 People v Bleakley, 69 NY2d 490, 495 [1987]). Indeed, we conclude that anacquittal on the lesser included offense of assault in the second degree would have beenunreasonable (see People v Peters,90 AD3d 1507, 1508 [2011]). The victim was rendered unconscious by the assault and wastaken by ambulance to the hospital, where it was determined that he suffered a right lateralorbital wall fracture, a subdural hematoma and a subarachnoid hemorrhage, as well as a lefttemporal bone transverse fracture. Contrary to defendant's contention, those injuries rise to thelevel of physical injury (see Penal Law § 10.00 [9]). We further note that a witnessto the assault testified that he observed defendant strike the victim with a brick, and the policefound a brick a few feet from the victim's head shortly after defendant fled the scene. In anyevent, even assuming, arguendo, that an acquittal on assault in the second degree would not havebeen unreasonable, we cannot conclude that the jury failed to give the evidence the weight itshould be accorded (see People vSmith, 46 AD3d 1458, 1458-1459 [2007], lv denied 10 NY3d 817 [2008];see generally Bleakley, 69 NY2d at 495).
Finally, although the prosecutor made several improper remarks during his summation, weconclude that the potential prejudice arising from those remarks was alleviated by the court'scurative instruction (see People vPerrington, 89 AD3d 529 [2011]; People v Moore, 32 AD3d 1354, 1354 [2006], lv denied 8NY3d 847 [2007], reconsideration denied 9 NY3d 848 [2007]). In any event, they werenot so egregious as to deprive defendant of his fundamental right to a fair trial (see People v Hatten, 28 AD3d1247, 1248 [2006], lv denied 7 NY3d 813 [2006]). Present—Centra, J.P.,Fahey, Lindley, Sconiers and Martoche, JJ.