| People v German |
| 2016 NY Slip Op 08700 [145 AD3d 1550] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael German, Appellant. |
David P. Elkovitch, Auburn, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered June 25, 2015. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of two counts of assault in the second degree (Penal Law § 120.05[3]). We conclude that the evidence, viewed in the light most favorable to the People, islegally sufficient to support the conviction. We note that a "peace officer" is defined toinclude a "correction officer[ ] of any state correctional facility" (CPL 2.10 [25];see Penal Law § 120.05 [3]). We further conclude that the evidencedemonstrates that the victims each sustained a "physical injury," defined as "impairmentof physical condition or substantial pain" (Penal Law § 10.00 [9];see § 120.05 [3]; see also People v Chiddick, 8 NY3d 445, 447-448 [2007]).Moreover, viewing the evidence in light of the elements of the crime as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Defendant failed to preserve for our review his contention that he was deprived ofdue process as a result of being shackled within the view of the jurors beginning on thesecond day of trial (see People vGoossens, 92 AD3d 1281, 1282 [2012], lv denied 19 NY3d 960 [2012]).Defendant likewise has failed to preserve for our review his contention that CountyCourt erred in failing to give a curative instruction regarding defendant's wearing ofshackles (see CPL 470.05 [2]; People v Harris, 303 AD2d 1026,1026-1027 [2003], lv denied 100 NY2d 594 [2003]). We decline to exercise ourpower to review those contentions as a matter of our discretion in the interest of justice(see CPL 470.15 [6] [a]).
Finally, defendant's contention that he was wrongfully excluded from a materialstage of trial, i.e., sidebar conferences among the court and the attorneys at whichdefendant's presence might have had a substantial effect on his ability to defend againstthe charges (see People v Sloan, 79 NY2d 386, 392-393 [1992]), "is notreviewable because he failed to provide 'an adequate record for appellatereview' " (People vLockett, 1 AD3d 932, 932 [2003], lv denied 1 NY3d 630 [2004],quoting People vVelasquez, 1 NY3d 44, 48 [2003]; see People v Camacho, 90 NY2d558, 560 [1997]). Present—Whalen, P.J., Smith, Peradotto, NeMoyer andScudder, JJ.