| People v West |
| 2015 NY Slip Op 05336 [129 AD3d 1629] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vNicholas A. West, Also Known as Edward Deshawn West, Appellant. |
Shirley A. Gorman, Brockport, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered January 7, 2010. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree, robbery in the first degree, robbery in the second degree andassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of burglary in the first degree (Penal Law § 140.30 [4]), robbery inthe first degree (§ 160.15 [4]), robbery in the second degree(§ 160.10 [1]), and assault in the second degree (§ 120.05 [2]).The conviction arises out of an incident in which defendant and two codefendants brokeinto an apartment and stole money and property from a woman inside, and defendantused a shotgun to shoot two men—only one of whom (hereafter, shooting victim)testified at trial—as the men fled down a hallway after coming to the apartmentdoor during the robbery (seePeople v McCullough, 128 AD3d 1510 [2015]).
Contrary to defendant's contention, Supreme Court did not abuse its discretion ingranting the People's challenge for cause of a prospective juror. "In the case of achallenge for cause of an unsworn juror, a trial court 'should lean toward disqualifying aprospective juror of dubious impartiality' " (People v Traylor, 283 AD2d1013, 1013 [2001], lv denied 96 NY2d 869 [2001], quoting People vBranch, 46 NY2d 645, 651 [1979]; see People v Arnold, 96 NY2d 358, 362[2001]). The prospective juror in question had worked at a law firm with codefendant'sattorney several years before the trial and, "[a]lthough [such] a 'nodding acquaintance'with the [codefendant's] trial attorney does not compel disqualification as a matter oflaw" (People v Purcell, 103 AD2d 938, 939 [1984]; see People vProvenzano, 50 NY2d 420, 425 [1980]), it was within the court's discretion todetermine that "the better choice [was] to exclude such a juror" (Purcell, 103AD2d at 939).
Defendant failed to preserve for our review his contentions concerning allegedprosecutorial misconduct (seePeople v Goley, 113 AD3d 1083, 1084 [2014]; People v Golson, 93 AD3d1218, 1219-1220 [2012], lv denied 19 NY3d 864 [2012]), and we decline toexercise our power to review them as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Defendant also failed to preserve for our review hiscontention that he was denied a fair trial by the court's questioning of witnesses (seePeople v Charleston, 56 NY2d 886, 887-888 [1982]; People v Anderson, 114 AD3d1083, 1087 [2014], lv denied 22 NY3d 1196 [2014]), and we conclude, inany event, that the court "did not unnecessarily or excessively interfere in thepresentation of proof" or "convey to the jury [its] opinion concerning the credibility ofthe witnesses or the merits of the case" (People v Brown, 256 AD2d 1109, 1109[1998], lv denied 93 NY2d 851 [1999]; see People v Jamison, 47 NY2d882, 883-884 [1979]; see generally People v Yut Wai Tom, 53 NY2d 44, 56-58[1981]).
Contrary to defendant's contention with respect to his conviction of assault in thesecond [*2]degree, we conclude that the evidence islegally sufficient to establish that the shooting victim sustained a physical injury, i.e., thathe experienced substantial pain (see Penal Law §§ 10.00 [9];120.05 [2]; People vChiddick, 8 NY3d 445, 447 [2007]). The shooting victim testified that he wasshot in the arm and leg, that being shot "[h]urt like hell" and "[f]elt like a bee sting with athousand pounds of pressure added to it," and that he received pain medication at ahospital, thereby establishing that the pain was "more than slight or trivial"(Chiddick, 8 NY3d at 447; see People v Stillwagon, 101 AD3d 1629, 1630 [2012],lv denied 21 NY3d 1020 [2013]; People v Henderson, 77 AD3d 1311, 1311 [2010], lvdenied 17 NY3d 953 [2011]). Moreover, viewing the evidence in light of theelements of the crime of assault in the second degree as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict with respect thereto is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). The jury was entitled to credit the shooting victim's description of hisinjuries and resulting pain (see People v Guidice, 83 NY2d 630, 636 [1994]; People v Smith, 45 AD3d1483, 1483 [2007], lv denied 10 NY3d 771 [2008]). Finally, the sentence isnot unduly harsh or severe. Present—Smith, J.P., Centra, Peradotto, Sconiers andWhalen, JJ.