| People v Stillwagon |
| 2012 NY Slip Op 08904 [101 AD3d 1629] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Donald F. Stillwagon, II, Also Known as Donald F. Stillwagon, AlsoKnown as Donald Stillwagon, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July6, 2011. 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: On appeal from a judgment convicting him upon a jury verdict of assault inthe second degree (Penal Law § 120.05 [3]), defendant contends that the conviction is notsupported by legally sufficient evidence that the victim, a police officer, sustained a physicalinjury or that defendant had the requisite intent inasmuch as he was intoxicated. We reject thosecontentions. The victim testified that defendant bit him in the forearm while he and two otherofficers were trying to place defendant on the ground during the course of an arrest and that,despite his efforts to "shake [defendant's] head loose," defendant's mouth was "locked right onto[his] arm." It was not until the victim punched defendant that defendant ceased biting him. Thevictim sought emergency medical treatment for the bite wound and missed several days of work.In the days following the incident, the victim experienced a "throbbing" pain that he treated withan over-the-counter painkiller. We conclude that the evidence is legally sufficient to establishthat the victim sustained a physical injury, i.e., that the pain was "more than slight or trivial" (People v Chiddick, 8 NY3d 445,447 [2007]; see People v Block, 168 AD2d 940, 940 [1990], lv denied 77 NY2d875 [1991]). "The question whether defendant's intoxication destroyed his ability to form therequisite intent is one for the jury" (People v Engelsen, 92 AD3d 1289, 1290 [2012]), and the evidenceis legally sufficient to support the jury's conclusion that defendant had the requisite intent toprevent the victim from performing his lawful duty (see generally People v New, 171AD2d 1006, 1006 [1991], lv denied 77 NY2d 998 [1991]; Block, 168 AD2d at940). Moreover, 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]).
Defendant failed to preserve for our review his contention that he was denied a fair trial byalleged instances of prosecutorial misconduct (see People v Cox, 21 AD3d 1361, 1363 [2005], lv [*2]denied 6 NY3d 753 [2005]). In any event, any "improprietieswere not so pervasive or egregious as to deprive defendant of a fair trial" (People vGonzalez, 206 AD2d 946, 947 [1994], lv denied 84 NY2d 867 [1994]). Finally, wereject defendant's contention that he was denied effective assistance of counsel based on defensecounsel's failure to object to the prosecutor's comments on summation and defense counsel'sfailure to object when the prosecutor elicited testimony regarding the victim's medical treatment.Viewing the evidence, the law and the circumstances of this case in totality and as of the time ofthe representation, we conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]; People v Brown, 67 AD3d 1369, 1370 [2009], lv denied 14NY3d 886 [2010]). Present—Smith, J.P., Carni, Lindley, Sconiers and Whalen, JJ.