| People v Manigault |
| 2016 NY Slip Op 08617 [145 AD3d 1428] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Derrick Manigault, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty ofcounsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered June 24, 2014. The judgment convicted defendant, upon a jury verdict, ofassault in the first degree and criminal possession of a weapon in the third 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 first degree (Penal Law § 120.10 [1]) and criminalpossession of a weapon in the third degree (§ 265.02 [1]). We rejectdefendant's contention that his conviction of assault in the first degree is not supportedby legally sufficient evidence of a serious physical injury, which includes a physicalinjury that causes "serious and protracted disfigurement" (§ 10.00[10]).
"A person is 'seriously' disfigured when a reasonable observer would find [theperson's] altered appearance distressing or objectionable" (People v McKinnon, 15 NY3d311, 315 [2010]), and "the injury must be viewed in context, considering its locationon the body and any relevant aspects of the victim's overall physical appearance"(id.). Here, the evidence at trial established that defendant used a box cutter to cutthe victim's face and chest, resulting in a facial wound that required five deep sutures and20 superficial sutures to close. The victim testified at trial and lifted his shirt to show thejury a chest scar that was 12 centimeters in length. The jury was also shown photographstaken approximately one month after the incident that depicted scars on the victim's faceand chest, and the victim testified that, despite some healing, at the time of the trial thescars were the same length and width and equally as visible as depicted in thephotographs. Thus, the evidence established that the victim sustained a permanent scaron his chest and a permanent facial scar that was slightly over three inches in length andwas prominently located on his cheek. Viewing the evidence in the light most favorableto the People (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the evidence is legallysufficient with respect to the element of serious physical injury to support the convictionof assault in the first degree (seePeople v Robinson, 121 AD3d 1405, 1407 [2014], lv denied 24 NY3d1221 [2015]; see also People vReitz, 125 AD3d 1425, 1425-1426 [2015], lv denied 26 NY3d 934[2015], denied reconsideration 26 NY3d 1091 [2015]; People v Irwin, 5 AD3d1122, 1122 [2004], lv denied 3 NY3d 642 [2004]).
We reject defendant's contention that the verdict is against the weight of the evidencewith respect to assault in the first degree. In particular, defendant contends that thePeople failed to prove that he intended to cause a serious physical injury inasmuch as theevidence established that the victim's lacerations were inflicted by accident. It is wellsettled that a defendant may be presumed to intend the natural and probableconsequences of his actions (seePeople v Roman, 13 AD3d 1115, 1116 [2004], lv denied 4 NY3d 802[2005]), and that the element of intent may be inferred from the totality of defendant'sconduct (see People v Mike, 283 AD2d 989, 989 [2001], lv denied 96NY2d 904 [2001]). Here, the People presented evidence establishing that defendantattacked the unarmed victim with a box cutter during a fist fight, and thereby establishedthat defendant intended to cause serious physical injury to the victim (see People vMarzug, 280 AD2d 974, 974 [2001], lv denied 96 NY2d 904 [2001]).Contrary to defendant's further contention, the People disproved the defense ofjustification beyond a reasonable doubt (see People v Gaines, 26 AD3d 269, 270 [2006], lvdenied 6 NY3d 847 [2006]). Thus, viewing the evidence in light of the elements ofassault in the first degree as charged to the jury (see Danielson, 9 NY3d at 349),we conclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that he was denied a fair trial by prosecutorialmisconduct. Initially, we note that defendant failed to preserve for our review hiscontentions that the prosecutor committed misconduct during summation by improperlyshifting the burden of proof and denigrating the defense (see People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]). In any event, weconclude that the challenged remarks were "fair comment upon the evidence" (People v Mulligan, 118 AD3d1372, 1375 [2014], lv denied 25 NY3d 1075 [2015]), did not exceed thebroad bounds of rhetorical comment permissible in summation, and constituted a fairresponse to defense counsel's summation (see People v Love, 134 AD3d 1569, 1570 [2015], lvdenied 27 NY3d 967 [2016]). We reject defendant's contention that he was denied afair trial by the remaining instances of prosecutorial misconduct. Specifically, theprosecutor on summation did not misstate the law with respect to justification, and wenote that Supreme Court instructed the jury that it should accept the law as charged bythe court (see People vLopez, 96 AD3d 1621, 1623 [2012], lv denied 19 NY3d 998 [2012]).Although we agree with defendant that the prosecutor's characterization of defendant'stestimony as a "manufactured story" was improper (see People v Morgan, 111 AD3d 1254, 1255 [2013]; People v Seeler, 63 AD3d1595, 1596 [2009], lv denied 13 NY3d 838 [2009]), we conclude that thissingle instance of misconduct, which was undermined by a successful defense objection,did not cause defendant such substantial prejudice that he was denied a fair trial (see People v Manigat, 136AD3d 614, 616 [2016], lv denied 27 NY3d 1135 [2016]; cf. People v Griffin, 125 AD3d1509, 1512 [2015]).
Defendant also failed to preserve for our review his contention that he was notproperly sentenced as a second felony offender because the People failed to comply withthe procedural requirements of CPL 400.21 (see People v Butler, 96 AD3d 1367, 1368 [2012], lvdenied 20 NY3d 931 [2012]). In any event, that contention is without merit. Defensecounsel admitted that defendant had a prior felony conviction (see People v Califano, 84AD3d 1504, 1506-1507 [2011], lv denied 17 NY3d 805 [2011]), and therecord establishes that defendant had an opportunity to controvert the allegations in thesecond felony offender statement but did not do so (see People v Brown, 140 AD3d 1740, 1741 [2016]; People v Hughes, 28 AD3d1185, 1185 [2006], lv denied 7 NY3d 790 [2006]). We therefore concludethat "under the circumstances presented here, . . . there was the requisitesubstantial compliance with CPL 400.21" (People v Irvin, 111 AD3d 1294, 1297 [2013], lv denied24 NY3d 1044 [2014], denied reconsideration 26 NY3d 930 [2015]; seegenerally People v Bouyea, 64 NY2d 1140, 1142 [1985]). Present—Smith,J.P., Carni, Lindley, DeJoseph and Scudder, JJ.