| People v Daniels |
| 2015 NY Slip Op 09225 [134 AD3d 525] |
| December 15, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Daniels, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Antoine Morris andMark Zeno of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (William McGuire, J., at dismissal motion;Ralph Fabrizio, J., at jury trial and sentencing), rendered June 20, 2013, convictingdefendant of assault in the first degree, and sentencing him to a term of 15 years,unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). Defendant inflicted severe stabwounds which, among other things, penetrated the victim's lung and caused a dangerousleakage of air. There was nothing speculative about the People's medical expert's opinionthat these injuries created a substantial risk of death. Accordingly, the element of seriousphysical injury was satisfied (see Penal Law § 10.00 [10]; People v Rodriguez, 2 AD3d284, 285 [1st Dept 2003], lv denied 2 NY3d 745 [2004]; People vGordon, 257 AD2d 533 [1st Dept 1999], lv denied 93 NY2d 899[1999]).
The court properly declined to submit third-degree assault as a lesser includedoffense. There was no reasonable view of the evidence, viewed most favorably todefendant, that he only struck the victim with his fists, while the stab wounds wereinflicted by an unidentified man at the scene. The victim's integrated and unimpeachedtestimony (see People v Negron, 91 NY2d 788, 792-793 [1998]) was that theunidentified man stood 10 to 15 feet away during the attack, and never participated.
The court properly denied defendant's motion to dismiss the indictment, allegingdenial of his right to testify before the grand jury. The record establishes that the Peopleafforded defendant a reasonable opportunity to testify by, among other things, repeatedlyadjourning the grand jury presentation over a period of several weeks in order toaccommodate him (see e.g.People v Watkins, 40 AD3d 290, 290-291 [1st Dept 2007], lv denied 9NY3d 870 [2007]; People vBrown, 32 AD3d 737 [1st Dept 2006], lv denied 8 NY3d 844[2007]).
The court properly exercised its discretion in receiving evidence that approximately amonth before the charged crime there was an altercation involving the victim, thevictim's cousin, defendant and other persons, in which a person other than defendant shotthe victim's cousin. This evidence helped to explain why defendant suddenly attacked thevictim a month later, and bears on the victim's ability to identity defendant as his attackeras well. Accordingly, this evidence "was relevant for . . . purpose[s] otherthan defendant's criminal propensity" (People v Leeson, 12 NY3d 823, 826-827 [2009]), and anyprejudice was minimized by the court's thorough instructions, both during the testimonyof the complaining witness and in the court's charge to the jury.
[*2] At sentencing, defendant was not deprived of effectiveassistance of counsel by the position counsel took on defendant's procedurally defectiveand patently meritless pro se motion. We perceive no basis for reducing the sentence.Concur—Friedman, J.P., Andrias, Gische and Kapnick, JJ.