| People v Gumbs |
| 2013 NY Slip Op 04688 [107 AD3d 548] |
| June 20, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Beneto Gumbs, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered October6, 2009, as amended October 15, 2009, convicting defendant, after a jury trial, of assaultin the first degree and two counts of criminal trespass in the second degree, andsentencing him, as a second violent felony offender, to an aggregate term of 20 years,unanimously affirmed.
The verdict was based on legally sufficient evidence. The element of serious physicalinjury was satisfied by evidence supporting the conclusion that the wounds inflicted bydefendant caused serious disfigurement to the victim (see People v McKinnon, 15 NY3d 311, 315-316 [2010]).Photographs of the victim's wounds, taken about a week after the crime, were received inevidence. The testimony of the victim and his treating physician, viewed as a whole,support the inference that at the time of trial a year later, the scars remained seriouslydisfiguring under the McKinnon standard. The record also supports theconclusion that defendant was criminally liable for the full extent of the victim'sdisfigurement (see e.g. Matter of Anthony M., 63 NY2d 270, 280 [1984];People v Stewart, 40 NY2d 692, 697 [1976]; People v Kane, 213 NY260, 270 [1915]).
The court responded meaningfully to the jury's narrowly tailored request for areadback of testimony (see People v Almodovar, 62 NY2d 126, 131-132 [1984]).The court reasonably interpreted the note as calling for the doctor's description of thevictim's wounds, but not any expert opinions, and after the readback the jury did notmake a followup request. In any event, in the circumstances presented, defendant was not"seriously prejudiced" (People v Lourido, 70 NY2d 428, 435 [1987]) by theabsence of readback as to certain opinions by the doctor that were favorable to defendanton issues such as whether the injuries were life-threatening. These opinions did not relateto the theory of disfigurement and were not exculpatory with regard to that issue.
The court properly adjudicated defendant a second violent felony offender. "[T]oobtain a hearing, a defendant must do more than make conclusory allegations that hisprior conviction was unconstitutionally obtained. He must support his allegations withfacts" (People vKonstantinides, 14 NY3d 1, 15 [2009]). Defendant only submitted thesentencing minutes for his predicate felony conviction, in which the attorney thenrepresenting defendant vaguely [*2]criticized theperformance of a prior attorney in the predicate case. This fell far short of requiring ahearing (see id.).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Acosta,Saxe and Freedman, JJ. [Prior Case History: 25 Misc 3d 1210(A), 2009 NY Slip Op52017(U).]