| People v Villalona |
| 2016 NY Slip Op 08936 [145 AD3d 625] |
| December 29, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Herbert Villalona, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), renderedSeptember 11, 2015, convicting defendant, after a jury trial, of assault in the first degree,and sentencing him to a term of 6
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]). The element of serious physicalinjury was established by the evidence that a knife wound caused an approximatelysix-inch-long keloid scar, mostly running from the back of the victim's head to the leftside of his neck, but ending on that side of his face (see People v Coney, 143 AD3d 490 [1st Dept 2016]). Thejury received a full opportunity to view the scar, and the court thoroughly described it forthe record. Accordingly, we find that the scar met the standard of serious disfigurement(see People v McKinnon,15 NY3d 311 [2010]). Defendant failed to preserve his challenge to the sufficiencyof the evidence of his intent to cause serious physical injury, and we decline to review itin the interest of justice. As an alternative holding, we find that defendant's intent wasabundantly established by his conduct of repeatedly slashing the victim with a knife, andrepeatedly circumventing a person who attempted to block him from reaching the victim(see People v Abdul-Khaliq,43 AD3d 700, 701 [1st Dept 2007], lv denied 9 NY3d 989 [2007]).
The admission of a recording of a 911 call placed by a nontestifying declarant, andseeking help for the injured victim, did not violate defendant's right of confrontation. Thecall was not testimonial, because the circumstances objectively indicated that the primarypurpose of the call was to enable the authorities "to meet an ongoing emergency"(Davis v Washington, 547 US 813, 822 [2006]), in light of the victim's profusebleeding. To the extent the call failed to qualify as an excited utterance because there wasevidence of the declarant's studied reflection, we find that any error was harmless (seePeople v Crimmins, 36 NY2d 230 [1975]). There was overwhelming evidence ofdefendant's guilt, and we note that even defense counsel deemed the 911 call cumulativeto other testimony.
The prosecutor's summation did not deprive defendant of a fair trial. The portions ofthe summation to which defendant objected on the ground of vouching were properresponses to defense counsel's arguments that the victim lacked credibility (seePeople v Overlee, 236 AD2d 133, 144 [1st Dept 1997], lv denied 91 NY2d976 [1998]). The prosecutor's statement that an [*2]argument made by defense counsel was "offensive" camewithin the broad latitude afforded to attorneys on summation (see People vGlover, 165 AD2d 761, 762 [1st Dept 1990], lv denied 77 NY2d 877[1991]). Since the only weapon involved in this case was a knife, the prosecutor'srhetorical question, "In what world can a person get pushed, take out a gun or a knife orsome other weapon and then use it on the person who pushed them?" should not havementioned a "gun," but this isolated error does not warrant reversal (see People vD'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d884 [1993]). The prosecutor's argument about the nontestifying 911 caller was a fairresponse to a defense argument. In any event, any error as to these summation remarkswas harmless (see People v Crimmins, 36 NY2d 230 [1975]). Defendant'sremaining challenges to the prosecutor's summation are unpreserved, and we decline toreview them in the interest of justice. As an alternative holding, we similarly find nobasis for reversal.
Defendant's ineffective assistance of counsel claims are unreviewable on directappeal because they generally involve matters not reflected in, or fully explained by, therecord (see People v Rivera, 71 NY2d 705, 709 [1988]). Therefore, sincedefendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claimsmay not be addressed on appeal. Alternatively, to the extent the record permits review,we find that defendant received effective assistance under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Stricklandv Washington, 466 US 668 [1984]). Accordingly, we do not find that any lack ofpreservation may be excused on the ground of ineffective assistance.Concur—Acosta, J.P., Renwick, Andrias, Saxe and Gische, JJ.