| People v Williams |
| 2015 NY Slip Op 07523 [132 AD3d 785] |
| October 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Willie Williams, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Joshua Norkin of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Ellen C. Abbot, and Jonathan V. Brewer of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered June 14, 2013, convicting him of assault in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was indicted on charges of assault in the first degree, assault in thesecond degree, and criminal possession of a weapon in the fourth degree, arising from analtercation during which he allegedly assaulted the complainant with a hammer.Following a jury trial, he was convicted of assault in the second degree. On appeal, thedefendant contends that the prosecutor's summation and the Supreme Court's jury chargeimpermissibly varied from the theory of the indictment by suggesting that he could haveused any dangerous instrument to assault the complainant. However, the defendant'schallenges to both the prosecutor's summation and the jury charge are unpreserved forappellate review. The defendant either failed to object to the allegedly impropersummation comments, made only general objections to those comments, or failed torequest curative instructions when his objections were sustained (see People v Gibson, 106AD3d 834 [2013]; People vYakubova, 11 AD3d 644 [2004]; People v Malave, 7 AD3d 542 [2004]). The defendant alsofailed to object to the jury charge (see CPL 470.05 [2]).
In any event, the defendant's contention that the prosecutor's summation and the jurycharge impermissibly varied from the theory of the indictment is without merit. Thepurpose of an indictment is to provide a defendant "with fair notice of the charges againsthim or her, and of the manner, time, and place of the conduct underlying the accusations,so as to enable the defendant to answer the charges and prepare an adequate defense" (People v Atta, 126 AD3d713, 715 [2015]). "Proof at trial that varies from the indictment potentiallycompromises two of the functions of the indictment—notice to the accused andthe exclusive power of the Grand Jury to determine the charges" (People v Grega,72 NY2d 489, 496 [1988]). Here, although the prosecutor and the Supreme Court madereference to a dangerous instrument, both the summation and the jury charge alsospecified that the dangerous instrument at issue was a hammer (see People vGrega, 72 NY2d 489 [1988]). Thus, the prosecutor's summation and the jury chargedid not change the theory of the case, or [*2]deprive thedefendant of fair notice.
The defendant's remaining contentions are without merit. Mastro, J.P., Leventhal,Duffy and Barros, JJ., concur.