| People v Ford |
| 2017 NY Slip Op 02271 [148 AD3d 1656] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Rickey D.Ford, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedSeptember 12, 2012. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofassault in the second degree (Penal Law §§ 20.00, 120.05 [2]). This case arosefrom an incident in which two men attacked the victim outside a bar following a disagreementover a game of darts. Eyewitnesses identified defendant as one of the victim's attackers; thesecond man remained unidentified.
Defendant failed to preserve for our review his challenge to the legal sufficiency of theevidence inasmuch as his motion for a trial order of dismissal was not " 'specificallydirected' " at the alleged error now raised on appeal (People v Gray, 86 NY2d 10,19 [1995]; see People v Simmons,133 AD3d 1227, 1227 [2015]). In any event, we conclude that the evidence is legallysufficient. With respect to the element of use of a "deadly weapon or dangerous instrument"(Penal Law § 120.05 [2]), an expert physician testified that the victim's woundswere consistent with a cut from a sharp object, but not consistent with a tear, and the Peopleintroduced photographs of those wounds. Although none of the eyewitnesses observed defendantor the unidentified man use or possess a weapon, we conclude that the circumstantial evidence islegally sufficient to establish that the victim suffered no fewer than five wounds caused by adangerous instrument (see People v Robinson, 288 AD2d 887, 888 [2001], affd98 NY2d 755 [2002]; People vDilly, 84 AD3d 1110, 1111 [2011], lv denied 17 NY3d 858 [2011]). We furtherconclude that the evidence is legally sufficient to establish that defendant intentionally aided theunidentified man in causing the victim physical injury by means of a dangerous instrument(see § 20.00). Regardless whether defendant was initially aware of thepresence of a sharp object, his "continued participation in the assault [is] sufficient to support theconclusion that he intentionally aided in the assault with a dangerous instrument" (People v Gurgov, 129 AD3d 989,990 [2015]). Furthermore, viewing the evidence in light of the elements of the crime of assault inthe second degree as an accessory as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]).
We agree with defendant that Supreme Court erred in denying his request for an adverseinference charge based on the People's failure to produce the surveillance video of the interior ofthe bar (see People v Handy, 20NY3d 663, 669 [2013]; People vButler, 140 AD3d 1610, 1612 [2016], lv denied 28 NY3d 969 [2016]).Nevertheless, we conclude that the error is harmless (see generally People v Crimmins,36 NY2d 230, 237 [1975]). Finally, defendant failed to preserve his contention that the courtdenied him the right to exercise a peremptory challenge (see People v Bester, 21 AD3d 1366, 1367 [2005]), and we declineto exercise our power to review that contention as a matter of [*2]discretion in the interest of justice (see CPL 470.15 [6] [a]).Present—Carni, J.P., Lindley, DeJoseph, Troutman and Scudder, JJ.