| People v Santiago |
| 2013 NY Slip Op 07594 [111 AD3d 1383] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v HenrySantiago, Jr., Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), renderedNovember 7, 2011. The judgment convicted defendant, upon a jury verdict, of predatorysexual assault.
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 ofpredatory sexual assault (Penal Law § 130.95 [1] [a]), defendant contends thatCounty Court abused its discretion in denying his request for substitution of counsel orfor an adjournment of the trial to permit him to retain new counsel. We reject thatcontention. Indeed, "defendant failed to proffer specific allegations of a 'seeminglyserious request' that would require the court to engage in a minimal inquiry" beforedenying defendant's request (People v Porto, 16 NY3d 93, 100 [2010]). Furthermore, wenote that "good cause [for an adjournment to permit a defendant to retain new counsel]does not exist [where, as here,] defendant[ ] [is] guilty of delaying tactics or where, onthe eve of trial, disagreements over trial strategy generate discord" (People v Linares, 2 NY3d507, 511 [2004]; see People v Arroyave, 49 NY2d 264, 271 [1980];People v Sayavong, 248 AD2d 1023, 1024 [1998], lv denied 92 NY2d 905[1998]).
As defendant correctly concedes, he failed to preserve for our review his contentionthat the court erred in failing to submit to the jury the issue of the voluntariness of hisstatements to the police (seePeople v Thomas, 96 AD3d 1670, 1673 [2012], lv denied 19 NY3d1002 [2012]). In any event, "[f]or [the issue of] voluntariness to be submitted to the jury,there must be [both] a proper objection and an offer of evidence sufficient to raise afactual dispute" (People v Mateo, 2 NY3d 383, 416 n 20 [2004], certdenied 542 US 946 [2004]; see People v Cefaro, 23 NY2d 283, 286-287[1968]; People v Haque, 70AD3d 967, 967 [2010], lv denied 15 NY3d 750 [2010], cert denied562 US —, 131 S Ct 903 [2011]), and here there was neither.
Defendant challenges the legal sufficiency of the evidence with respect to whetherthe victim sustained a serious physical injury within the meaning of Penal Law §130.95 (1) (a) and whether he caused such injury. The People presented evidenceestablishing that the victim sustained a fractured jaw that was wired shut for four weeks,along with evidence that the victim [*2]experiencednumbness that continued until the time of trial and lost three teeth. Consequently, weconclude that the evidence of serious physical injury is legally sufficient to support theconviction (see People vBlackman, 90 AD3d 1304, 1307 [2011], lv denied 19 NY3d 971[2012]; People v Johnson,50 AD3d 1537, 1537-1538 [2008], lv denied 10 NY3d 935 [2008]; Matter of Tirell R., 33 AD3d804, 805 [2006]). Defendant's further contention that the evidence is legallyinsufficient to establish that he caused the victim's injury is without merit inasmuch asthe victim testified that defendant punched her in the jaw and that she felt it break. Also,two physicians testified that the victim's jaw was broken in two places, and that suchinjuries are consistent with a punch as described by the victim.
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Peradotto, Carni, Valentino and Whalen, JJ.