| People v Hendrix |
| 2015 NY Slip Op 07362 [132 AD3d 1348] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vNorris D. Hendrix, Appellant. |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
Donald G. O'Geen, District Attorney, Warsaw (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), renderedDecember 12, 2013. The judgment convicted defendant, upon a jury verdict, of assault inthe 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 assault in the second degree (Penal Law § 120.05 [3]) arisingfrom an incident in which a correction officer at the correctional facility where defendantwas incarcerated was injured while performing a pat frisk of defendant. Defendantcontends that he was denied a fair trial by several alleged instances of prosecutorialmisconduct, but we note that defendant failed to preserve his contention for our reviewwith respect to any of those instances. In any event, we conclude that "[a]ny'improprieties were not so pervasive or egregious as to deprive defendant of a fairtrial' " (People v Johnson, 303 AD2d 967, 968 [2003], lv denied100 NY2d 583 [2003]).
Defendant further contends that he was denied effective assistance of counsel by hisattorney's failure to object to the alleged instances of prosecutorial misconduct andfailure to request a jury charge on the justified use of physical force pursuant to PenalLaw § 35.15. With respect to the alleged instances of prosecutorialmisconduct, inasmuch as they were not so egregious as to deprive defendant of a fairtrial, defense counsel's failure to object thereto did not deprive defendant of effectiveassistance of counsel (seePeople v Koonce, 111 AD3d 1277, 1279 [2013]). With respect to the jurycharge on justification, we conclude that defendant failed to demonstrate the absence of astrategic or other legitimate explanation for defense counsel's decision not to request thatcharge (see generally People v Benevento, 91 NY2d 708, 712 [1998]). Indeed,defendant testified that he did not use physical force against the correction officer, andwe therefore cannot conclude that defense counsel was ineffective for failing to seek ajury charge covering force that defendant swore he did not use.
Finally, defendant contends that the verdict is against the weight of the evidencebecause the testimony of the correction officer regarding his injuries and the way theywere sustained is incredible as a matter of law. Viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject that contention (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The injuries sustained by the correction officer, including a mild concussion andheadaches (see People vNewman, 71 AD3d 1509, 1509-1510 [2010], lv denied 15 NY3d 754[2010]), were described in his testimony and corroborated by the testimony of themedical providers who treated him, as was the manner in which they were sustained,which the jury found probative of defendant's intent to prevent the correction officer"from performing a lawful duty" (Penal Law § 120.05 [3]; see People v Pinero-Baez, 67AD3d 469, 469 [2009], lv denied 13 NY3d 941 [2010]). We perceive nobasis to disturb the jury's credibility determinations with respect to that testimony.Present—Centra, J.P., Peradotto, Lindley, Whalen and DeJoseph, JJ.