| People v Cruz |
| 2015 NY Slip Op 06975 [131 AD3d 889] |
| September 29, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Janethza Cruz, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Lorraine Maddalo ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lindsey Richards of counsel), forrespondent.
Judgment, Supreme Court, New York County (Patricia Nunez, J.), rendered October21, 2010, convicting defendant, after a jury trial, of assault in the first degree, andsentencing her to a term of five years, unanimously affirmed.
Defendant did not preserve her challenge to the sufficiency of the evidencesupporting the element of serious physical injury, and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). The element of serious physical injury was satisfied byevidence supporting the conclusion that the wound inflicted by defendant caused seriousdisfigurement to the victim's face (see People v McKinnon, 15 NY3d 311, 315-316 [2010]).Photographs, medical testimony, testimony from the victim, and reasonable inferences tobe drawn from the evidence support the conclusion that at the time of trial, years after thecrime, the victim still had a prominent and distressing facial scar (see e.g. People v Matos, 121AD3d 545 [1st Dept 2014], lv denied 24 NY3d 1121 [2015]).
Defendant's challenges to evidence concerning a knife found at the scene of thecrime, to evidence of her consciousness of guilt, to the prosecutor's summation, and tothe court's charge are unpreserved, and we decline to review them in the interest ofjustice. As an alternative holding, we reject them on the merits, except that we find thatwhile a jury charge on consciousness of guilt would have been appropriate, any error washarmless (see People v Valtin, 284 AD2d 203 [1st Dept 2001], lv denied97 NY2d 643 [2001]).
Defendant's ineffective assistance of counsel claims are generally unreviewable ondirect appeal because they involve matters not reflected in, or fully explained by, therecord, including matters of strategy, such as counsel's decision to introduce intoevidence the knife that defendant now claims to be inadmissible (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).Accordingly, since defendant has not made a CPL 440.10 motion, the merits of theineffectiveness claims may not be addressed on appeal. In the alternative, to the extentthe existing record permits review, we find that defendant received effective assistanceunder the state and federal standards (see People v Benevento, 91 NY2d 708,713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). Defendant hasnot shown that any of counsel's [*2]alleged deficienciesfell below an objective standard of reasonableness, or that, viewed individually orcollectively, they deprived defendant of a fair trial or affected the outcome of the case.While defendant faults her attorney for failing to make various objections, we concludethat those objections would have been futile. Concur—Mazzarelli, J.P., Sweeny,Renwick and Manzanet-Daniels, JJ.