| People v Wilkins |
| 2013 NY Slip Op 07425 [111 AD3d 451] |
| November 12, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rondell Wilkins, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered August31, 2011, convicting defendant, after a jury trial, of assault in the second degree andtampering with physical evidence, and sentencing him, as a second felony offender, to anaggregate term of three years, unanimously affirmed.
Defendant's general motion to dismiss did not preserve his legal sufficiency claims(see People v Gray, 86 NY2d 10, 19 [1995]), notwithstanding that the courtreserved decision on the motion and defendant made a more specific motion, for the firsttime, at sentencing (see People v Padro, 75 NY2d 820 [1990]). We decline toreview these claims in the interest of justice. As an alternative holding, we reject them onthe merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). We find no basis for disturbing the jury's credibilitydeterminations.
The element of physical injury was established by an officer's testimony that afterdefendant threw loose tobacco in his eyes, the officer felt "burning . . . likefire in [his] eyes," his eyes "tear[ed] up," his vision became "blurry," and severe painpersisted for about 20 minutes, until alleviated by medical attention. The evidencesupported the conclusion that the officer felt "substantial pain" (Penal Law § 10.00[9]), which means "more than slight or trivial pain" (People v Chiddick, 8 NY3d 445, 447 [2007]).
The elements of tampering with physical evidence (Penal Law § 215.45 [2])were established by evidence that defendant discarded small ziploc bags as he fled frompolice who had observed him engaging in an apparent drug transaction. The evidencesupports the conclusion that defendant committed an act of concealment (see People v Eaglesgrave, 108AD3d 434 [1st Dept 2013]), and that although the police were unable to find theseitems, they were "contraband or evidence that defendant intended to prevent the policefrom discovering" (see People vGreen, 54 AD3d 603, 603-604 [1st Dept 2008], lv denied 11 NY3d 897[2008]).[*2]
We have considered and rejected defendant'sineffective assistance of counsel claim (see People v Benevento, 91 NY2d 708,713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).Concur—Andrias, J.P., Acosta, Saxe, Renwick and Manzanet-Daniels, JJ.