| People v Lugg |
| 2015 NY Slip Op 00391 [124 AD3d 679] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mark S. Lugg, Appellant. |
Marianne Karas, Thornwood, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco andRichard L. Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Hubert, J.), rendered December 20, 2012, convicting him of assault in the first degree,criminal possession of a weapon in the fourth degree, and endangering the welfare of achild, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was returning his three-year-old daughter to her mother after aweekend visitation, when he became involved in an argument with the mother and herboyfriend, Jermaine Cooper. During the course of the argument, Cooper, who wasunarmed, punched the defendant in the face. The defendant then pulled out a box cutterand twice swung at Cooper, missing both times. After Cooper punched the defendantagain, the defendant slashed the side Cooper's face with the box cutter, inflicting awound more than five inches long, which required 50 stitches to close.
On appeal, the defendant contends that the County Court erred in instructing the juryonly with respect to the defense of the justified use of deadly physical force, rather thanthe justified use of ordinary physical force. Contrary to the People's contention, this issueis preserved for appellate review, since the County Court expressly decided it (seeCPL 470.05 [2]; People vLoper, 115 AD3d 875, 878 [2014]; People v Fermin, 36 AD3d 934, 935 [2007]). However, thecontention is without merit. "[T]he particular justification instruction given to the jurymust be consistent with the facts and, where it can be determinated as a matter of law thatthe physical force used by the defendant was in fact, 'deadly', that is, 'readily capable ofcausing death or other serious physical injury,' the trial court may limit the justificationinstruction to authorizing the use of deadly physical force" (People v Mothon,284 AD2d 568, 569 [2001], quoting Penal Law § 10.00 [11] [internalquotation marks omitted]; seePeople v Taylor, 118 AD3d 1044 [2014]). Here, the defendant's use of the boxcutter to slash Cooper's face constituted deadly physical force because it was "readilycapable" of causing death or serious injury, regardless of the degree of injury he actuallyintended or inflicted (see Peoplev Steele, 19 AD3d 175, 176 [2005]; People v Mothon, 284 AD2d at569). Accordingly, the County Court properly instructed the jury only with respect to thedefense of the justified use of deadly physical force (see People v Soriano, 121 AD3d 1419 [2014]; People v Taylor, 118 AD3d1044 [2014]; People v Lawrence, 256 AD2d 358, 359 [1998]).
[*2] The defendant failed to preserve for appellate reviewhis contention that the evidence was legally insufficient to support his conviction ofassault in the first degree because it did not establish his intent to commit that offense (see People v Hawkins, 11NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), it was legally sufficient to establish the defendant'sguilt of assault in the first degree beyond a reasonable doubt (see Penal Law§ 120.10 [1]; People v Lewis, 104 AD3d 958 [2013]; People v Abdul-Khaliq, 43AD3d 700, 701 [2007]; People v Wade, 187 AD2d 687 [1992]). Moreover,upon the exercise of our independent factual review power (see CPL 470.15 [5]),we are satisfied that the verdict of guilt on that count was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's challenges to certain comments made by the prosecutor during heropening statement and on summation are unpreserved for appellate review and, in anyevent, without merit. The prosecutor's comment during her opening statement did notconstitute an improper instruction on the law of justification, and the challengedsummation comments were permissible as fair response to the defense summation (see People v Grant, 122 AD3d643 [2014]; People vKing, 119 AD3d 819 [2014]; People v Evans, 116 AD3d 879 [2014]).
A fair reading of the sentencing minutes does not support the defendant's argumentthat the sentencing court improperly considered uncharged crimes in imposing thesentence (see People vMcGrath, 20 AD3d 574, 575 [2005]; People v Carroll, 181 AD2d 904[1992]). Moreover, the sentence imposed was not excessive (see People v Suitte,90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Eng, P.J., Mastro, Roman and Miller, JJ., concur.