| People v Addison |
| 2012 NY Slip Op 03325 [94 AD3d 1539] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Benjamin A.Addison II, 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 May27, 2010. The judgment convicted defendant, upon a jury verdict, of criminal mischief in thethird degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofcriminal mischief in the third degree (Penal Law § 145.05 [2]) and resisting arrest (§205.30). The evidence at trial established that defendant shoveled substantial amounts of snowand large chunks of ice onto a neighbor's vehicle, causing a crack in the windshield that costmore than $250 to repair. Although defendant does not dispute on appeal that he engaged in suchconduct, he contends that the evidence is legally insufficient to establish that he intended to causedamage to the vehicle, which is a necessary element of criminal mischief in the third degree. Wereject that contention. "A defendant may be presumed to intend the natural and probableconsequences of his actions" (People vMahoney, 6 AD3d 1104, 1104 [2004], lv denied 3 NY3d 660 [2004]). Here, weconclude that a damaged windshield is a natural and probable consequence of heaving largechunks of ice onto a motor vehicle. Viewing the evidence in light of the elements of the crime ofcriminal mischief in the third degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we furtherconclude that the verdict with respect to that count is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that he was deprived of a fair trialbased on improper comments made by the prosecutor during voir dire that allegedly trivializedthe case and blamed defendant for exercising his right to a jury trial (see generally People v Williams, 8NY3d 854, 855 [2007]). In any event, County Court dismissed the prospective jurors in theinitial jury panel who had not already been sworn, thereby alleviating any prejudice to defendantbased on the comments made to those prospective jurors. Contrary to defendant's furthercontention, the court did not err in failing to discharge sua sponte the three sworn jurors who hadbeen selected from that initial panel of allegedly tainted prospective jurors. "[Q]uestionsconcerning prospective jurors' knowledge or attitudes relating to a particular law are irrelevant totheir functions as triers of factual issues and, therefore, have no bearing on their [*2]qualifications as jurors . . . [and where, as here, t]heprospective jurors were asked by the court whether, given the nature of the case, they couldrender a fair and impartial verdict" those who responded that they were able to do so couldproperly serve (People v Corbett, 68 AD2d 772, 778-779 [1979], affd 52 NY2d714 [1980]).
Finally, we reject defendant's contention that the failure of defense counsel to request that thethree sworn jurors in question be disqualified constituted ineffective assistance of counselrequiring reversal. Defendant failed " 'to demonstrate the absence of strategic or other legitimateexplanations' for [defense] counsel's alleged shortcomings" (People v Benevento, 91NY2d 708, 712 [1998]; see People vDickeson, 84 AD3d 1743 [2011]). Present—Centra, J.P., Peradotto, Lindley,Sconiers and Martoche, JJ.