| People v Rowe |
| 2013 NY Slip Op 02292 [105 AD3d 1088] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vSydney A. Rowe, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered October 24, 2011, upon a verdict convicting defendant of thecrimes of promoting prison contraband in the first degree and attempted assault in thesecond degree (two counts).
In February 2010, defendant was involved in a physical altercation with anotherinmate (hereinafter the victim) while incarcerated at Elmira Correctional Facility inChemung County. He was thereafter charged with promoting prison contraband in thefirst degree and two counts of attempted assault in the second degree. Following a jurytrial, he was convicted as charged and sentenced as a second felony offender to anaggregate prison term of 2½ to 5 years, to run consecutively to his existingsentence. Defendant appeals.
Initially, County Court did not err in allowing the People to amend the indictment toadd citations to Penal Law § 110.00 to the counts charging attempted assault in thesecond degree. Omission of these citations was merely a clerical error and theamendment—made some seven months before the trial—neither altered thetheory of prosecution nor caused prejudice to defendant (see CPL 200.70; People v Jordan, 34 AD3d927, 930 [2006], lv denied 8 NY3d 881 [2007]). As to the count chargingattempted assault pursuant to Penal Law § 120.05 (7), the failure to allege theelement of confinement in a correctional facility was not a defect; as County Court held,this element is not to be included in the indictment, but is to be separately presented[*2]by special information to avoid prejudice (seeCPL 200.60; People vDove, 86 AD3d 715, 715 [2011], lv denied 17 NY3d 903 [2011];People v Gaddy, 191 AD2d 735, 735 [1993], lv denied 82 NY2d 718[1993]). Here, the special information was defective in failing to specifically allege thatdefendant was confined at the time of the instant offense. Nonetheless, as the indictmentset forth the statutory reference to Penal Law § 120.05 (7), defendant was fairlyapprised of all the elements of the crime (see People v D'Angelo, 98 NY2d 733,735 [2002]; People v Brickley, 306 AD2d 551, 552-553 [2003], lvdenied 100 NY2d 641 [2003]).[FN1]
Defendant next asserts that his convictions were not supported by legally sufficientevidence and were against the weight of the evidence.[FN2]The testimony established that correction officers and inmates saw defendant fightingwith the victim in the correctional facility's field house. No witness saw either participantuse a weapon, but the victim sustained a straight, clean-edged laceration that extendedacross the bridge of his nose onto his cheek, and defendant sustained a clean-edgedlaceration on the palm of his right hand. Shortly after the incident, a small, sharp bladewith cardboard, electrical tape and a sticker wrapped around one end was found on thefloor approximately six feet from where the fight had occurred. This blade fit neatly intoa small object that was found in defendant's pocket and was likewise made of cardboard,electrical tape and a sticker that matched the sticker on the blade. A correction officeridentified this item, based on his years of experience, as a sheath for a weapon. Therewas testimony that instruments similar to the blade had previously been used in thefacility, were capable of causing serious injury and typically caused straight lacerationswith clean edges. Defendant testified and denied possessing the blade, the sheath or anyweapon; he contended that the victim's facial injury could have been caused by a zipperon a coat that he pulled over the victim's head during the struggle. While a differentverdict would not have been unreasonable, upon weighing the evidence in a neutral lightand according deference to the jury's credibility assessments, we find that defendant'sconvictions were not against the weight of the evidence (see People v Brown, 90 AD3d1140, 1140-1141 [2011], lv denied 18 NY3d 922 [2012]; People v Griffin, 24 AD3d972, 974 [2005], lv denied 6 NY3d 834 [2006]).
We reject defendant's contention that he received ineffective assistance of counsel.Defendant did not "demonstrate the absence of strategic or other legitimate explanations"for his counsel's failure to request a missing witness charge with regard to the victim(People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks andcitations omitted]; accordPeople v Hutchinson, 57 AD3d 1013, 1014 [2008], lv denied 12 NY3d817 [2009]). Notably, the record reveals that defense counsel was aware of the substanceof testimony that the victim had given during a previous prison disciplinary hearing andthat he and the prosecutor agreed to make [*3]noreference to this hearing during the trial. Further, although defense counsel did not objectwhen the prosecutor suggested during summation that fear of retaliation may haveprevented the victim from testifying, this remark was a fair response to defense counsel'scomments on the victim's failure to testify and, in any event, "was not so prejudicial todefendant as to render counsel's failure to object to [it] evidence of ineffective assistanceof counsel" (People vFisher, 89 AD3d 1135, 1139 [2011], lv denied 18 NY3d 883 [2012][internal quotation marks and citations omitted]; see People v Molano, 70 AD3d 1172, 1177 [2010], lvdenied 15 NY3d 776 [2010]).
Finally, we reject the contention that prosecutorial misconduct deprived defendant ofa fair trial. County Court appropriately addressed the objections made by the prosecutorduring defense counsel's summation by overruling them, cautioning the prosecutor thatdefense counsel's arguments were permissible, and twice instructing the jury thatcounsel's remarks during argument did not constitute evidence, and that the jury'sdecision was to be based on the evidence. The prosecutor's remarks in summationconstituted fair responses to defense counsel's argument and theory of defense and didnot exceed the bounds of permissible rhetorical comment (see People v Molina, 79 AD3d1371, 1376-1377 [2010], lv denied 16 NY3d 861 [2011]; People v Williamson, 77AD3d 1183, 1185 [2010]). Viewing the summation as a whole, we find no "flagrantand pervasive pattern of misconduct" requiring a new trial (People v Hunt, 39 AD3d961, 964 [2007], lv denied 9 NY3d 845 [2007] [internal quotation marksand citation omitted]). Defendant's remaining contentions have been examined and foundto be without merit.
Mercure, J.P., Rose and Lahtinen, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1: Defendantacknowledged his incarceration at the time of his arraignment on the special information(compare People v Gaddy, 191 AD2d at 736).
Footnote 2: Defendant's generalmotion for a trial order of dismissal did not preserve his legal sufficiency claim (seePeople v Finger, 95 NY2d 894, 895 [2000]); however, his claim that the convictionswere also against the weight of the evidence requires this Court to evaluate thesufficiency of the evidence as to each element of the crimes (see People v Townsend, 94AD3d 1330, 1330 n 1 [2012], lv denied 19 NY3d 1105 [2012]).