| People v Snyder |
| 2012 NY Slip Op 07440 [100 AD3d 1367] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WalterSnyder, Also Known as Butch Snyder, Appellant. |
—[*1] Jason L. Cook, District Attorney, Penn Yan (Patrick T. Chamberlain of counsel), forrespondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), rendered March30, 2010. The judgment convicted defendant, upon a jury verdict, of assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence to a determinate term ofimprisonment of seven years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofassault in the first degree (Penal Law § 120.10 [1]). Defendant failed to preserve for ourreview his contention that the indictment is facially duplicitous (see People v Becoats, 71 AD3d1578, 1579 [2010], affd 17 NY3d 643 [2011], cert denied 566 US —,132 S Ct 1970 [2012]; People vFiler, 97 AD3d 1095, 1096 [2012]). In any event, that contention is without meritinasmuch as "[e]ach count of [the] indictment . . . charge[s] one offense only" (CPL200.30 [1]; see People v Wright, 85AD3d 1642, 1642 [2011], lv denied 17 NY3d 863 [2011]; see generally People vKeindl, 68 NY2d 410, 417 [1986], rearg denied 69 NY2d 823 [1987]), i.e., assaultwith a dangerous instrument (see Penal Law §§ 120.10 [1]; 120.05 [4]).Although defendant's contention that the indictment was rendered duplicitous by the trialtestimony need not be preserved for our review (see Filer, 97 AD3d at 1096; People v Boykins, 85 AD3d 1554,1555 [2011], lv denied 17 NY3d 814 [2011]), that contention is likewise without merit.The evidence establishes that the multiple punches and/or kicks delivered by defendant constitutea single uninterrupted assault rather than a series of distinct criminal acts (see People v Alonzo, 16 NY3d267, 270 [2011]; People vKaid, 43 AD3d 1077, 1079-1080 [2007]; cf. Boykins, 85 AD3d at 1555), andthe assault "occurred over a short time frame, without apparent abeyance, and was triggered by asingle incident of anger" (People vHines, 39 AD3d 968, 969-970 [2007], lv denied 9 NY3d 876 [2007]).
Defendant also failed to preserve for our review his contention that the trial evidence islegally insufficient to establish his intent to cause serious physical injury to the victim or his useof a dangerous instrument inasmuch as he did not raise those specific grounds in his motion for atrial order of dismissal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Latorre, 94 AD3d 1429,1429-1430 [2012], lv denied 19 NY3d 998 [2012]). In any event, defendant's intent tocause serious physical [*2]injury may be inferred from, inter alia,his conduct, the surrounding circumstances, and the medical evidence (see People v Nicholson, 97 AD3d968, 969 [2012]; People vMoore, 89 AD3d 769, 769 [2011], lv denied 18 NY3d 926 [2012]; People vWhite, 216 AD2d 872, 873 [1995], lv denied 86 NY2d 805 [1995]). Additionally,"under the circumstances in which [they were] used, attempted to be used or threatened to beused," defendant's boots were "readily capable of causing death or other serious physical injury"and thus qualify as a "dangerous instrument" (Penal Law § 10.00 [13]; see People v Ingram, 95 AD3d1376, 1377 [2012], lv denied 19 NY3d 974 [2012]; People v Richardson, 95 AD3d791, 791-792 [2012], lv denied 19 NY3d 1000 [2012]).
We reject defendant's further contention that the evidence is legally insufficient to establishthat the victim sustained a serious physical injury. As relevant here, the Penal Law defines"[s]erious physical injury" as, inter alia, "physical injury which . . . causes. . . serious and protracted disfigurement" (§ 10.00 [10]). Here, the recordestablishes that, as a result of the assault, five of the victim's teeth were significantly damaged.The victim's dentist testified that one of the victim's teeth was broken off at the gum line, anothertooth was broken in half, and three other teeth were badly fractured. According to the dentist,three of the victim's teeth were damaged so extensively that they could not be restored and had tobe extracted. The remaining damaged teeth were fractured so badly that they required crowns. Inaddition, the People introduced in evidence photographs of the victim's teeth and copies of hisdental X rays that showed the extent of the damage to his teeth. We thus conclude that theevidence is legally sufficient to establish that the victim suffered "serious and protracteddisfigurement" (id.; see People vHeier, 90 AD3d 1336, 1337 [2011], lv denied 18 NY3d 994 [2012]; Peoplev Crawford, 200 AD2d 683, 684 [1994], lv denied 83 NY2d 870 [1994]; Matterof Patrick W., 166 AD2d 652, 653 [1990]; People v Howard, 79 AD2d 1064, 1065[1981]). Because "the evidence at trial is legally sufficient to support the conviction, defendant'sfurther contention that the evidence presented to the grand jury was legally insufficient is notreviewable on appeal" (People vBrown, 96 AD3d 1561, 1562 [2012]; see CPL 210.30 [6]; People v Johnson, 94 AD3d 1408,1409 [2012], lv denied 19 NY3d 998 [2012]). Contrary to the further contention ofdefendant, we conclude that, viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that the admission in evidence ofhospital and dental records violated his right of confrontation inasmuch as he failed to object tothe admission of those records (seePeople v Snyder, 91 AD3d 1206, 1213 [2012], lv denied 19 NY3d 968 [2012];People v Myers, 87 AD3d 826,829 [2011], lv denied 17 NY3d 954 [2011]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). Defendant also failed to preserve for our review his contention that County Court erredin admitting expert testimony without an adequate foundation (see People v Scott, 93 AD3d 1193,1195 [2012], lv denied 19 NY3d 967 [2012], reconsideration denied 19 NY3d1001 [2012]; People v Nguyen, 66AD3d 1367, 1367 [2009], lv denied 13 NY3d 909 [2009]). In any event, defendant'scontention goes to the weight of the testimony, not its admissibility (see Scott, 93 AD3dat 1195; People v Hayes, 33 AD3d403, 404 [2006], lv denied 7 NY3d 902 [2006]).
Contrary to defendant's further contention, there was no Rosario violation. "There isno requirement that a prosecutor record in any fashion his [or her] interviews with a witness. Ifthe prosecutor chooses to do so, Rosario and its progeny require that the recording befurnished to the defense. But nothing in the Rosario line of cases in any way imposes anobligation on the prosecutor to create Rosario material in interviewing witnesses. Nor dothese cases or any related authority hold that a defendant's right of cross-examination is unfairlyfrustrated by the failure to record the witness's statement" (People v Steinberg, 170 AD2d50, 76 [1991], affd 79 NY2d 673 [1992]; see People v Littles, 192 AD2d 314,315 [1993], lv denied 81 NY2d 1016 [1993]).[*3]
We also reject the contention of defendant that hereceived ineffective assistance of counsel. With respect to defense counsel's failure to request aHuntley hearing, "[d]efendant failed to show that, had [defense] counsel moved for[such] a . . . hearing, his statements would have been suppressed" (People vHill, 281 AD2d 917, 918 [2001], lv denied 96 NY2d 902 [2001]; see generally People v Salsbery, 78AD3d 1624, 1625-1626 [2010], lv denied 16 NY3d 836 [2011]). Thus, defendantdid not establish that defense counsel was ineffective in failing to make such a motion (see generally People v Tolliver, 93AD3d 1150, 1151 [2012], lv denied 19 NY3d 968 [2012]). Further, defendant failedto demonstrate the absence of a strategic or other legitimate explanation for defense counsel'sfailure to seek suppression of defendant's statements to the police, particularly given that thosestatements were consistent with his justification defense (see generally People v Jurjens,291 AD2d 839, 840 [2002], lv denied 98 NY2d 652 [2002]). Contrary to defendant'scontention that defense counsel did not engage in an examination of prospective jurors, therecord establishes that defense counsel in fact questioned each of the three panels of prospectivejurors (cf. People v Bell, 48 NY2d 933, 934 [1979], rearg denied 49 NY2d 802[1980]). With respect to defendant's contention that defense counsel allegedly engaged in an"unsuccessful" cross-examination of the victim, "[t]hat contention constitutes a disagreementwith the strategies and tactics of [defense] counsel [that], in hindsight, may have beenunsuccessful but, nonetheless, do not rise to a level of ineffective assistance of counsel" (People v Ocasio, 81 AD3d 1469,1469 [2011], lv denied 16 NY3d 898 [2011], cert denied 565 US —, 132 SCt 318 [2011] [internal quotation marks omitted]; see generally People v Flores, 84NY2d 184, 187 [1994]). With respect to the remaining instances of ineffective assistance ofcounsel alleged by defendant, we conclude based on the record before us that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Contrary to the further contention of defendant, he was "not denied a fair trial by the cumulativeeffect of the alleged errors" set forth herein (People v McKnight, 55 AD3d 1315, 1317 [2008], lv denied11 NY3d 927 [2009]; see generally People v Gramaglia, 71 AD2d 441, 445 [1979]).
We agree with defendant, however, that the sentence is unduly harsh and severe under thecircumstances of this case, and we therefore modify the sentence as a matter of discretion in theinterest of justice to a determinate term of imprisonment of seven years. Present—Fahey,J.P., Peradotto, Carni and Sconiers, JJ.