People v Rudenko

2017 NY Slip Op 05246 [151 AD3d 1084]

June 28, 2017

Appellate Division, Second Department

As corrected through Wednesday, August 2, 2017

[*1]

The People of the State of New York,Respondent, v Konstantin Rudenko, Appellant.

Lynn W. L. Fahey, New York, NY (Nao Terai and Kendra Hutchinson of counsel), forappellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort,and Arieh Schulman of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.),rendered May 15, 2014, convicting him of assault in the first degree and criminal possession of aweapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the evidence of serious physical injury adduced at trial waslegally insufficient to support his conviction of assault in the first degree. However, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), we find that it was legally sufficient to establish that the complainant sustaineda "serious physical injury" within the meaning of Penal Law § 10.00 (10).Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we aresatisfied that the verdict of guilt on the count of assault in the first degree, including the seriousphysical injury element, was not against the weight of the evidence (see People v Romero, 7 NY3d633, 644-645 [2006]). The medical evidence established that the complainant sustained twoknife wounds, including a deep stab wound to the left anterior chest wall about three inches fromhis heart, and developed a hematoma in the muscle of his chest. The stab wound requiredstitches, and the complainant was admitted to the hospital for observation. Overnight, thehematoma expanded in the chest muscle, requiring the complainant to undergo an approximately11/2 hour surgery under general anesthesia, during which a drain was inserted inhis chest. The People's medical expert testified that, if left untreated, the complainant could havedied. At the time of trial, almost two years after the incident, the complainant still had scars fromthe stabbing, which he displayed to the jury (see People v Almonte, 7 AD3d 324, 325 [2004]; People v Rodriguez, 2 AD3d 284,285 [2003]; People v Rivera, 300 AD2d 168, 168-169 [2002]; People vGagliardo, 283 AD2d 964 [2001]; People v Sacasa, 214 AD2d 688 [1995];People v Ross, 125 AD2d 422 [1986]; cf. People v Adames, 52 AD3d 617, 618 [2008]).

The defendant's contention that certain remarks made by the prosecutor during summationdeprived him of a fair trial is unpreserved for appellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d 911,912 [2006]). In any event, the challenged remarks were fair comment on the evidence and thereasonable inferences to be drawn therefrom (see People v Guzman, 138 AD3d [*2]1140, 1140 [2016]; People v Ramrattan, 126 AD3d 1013, 1014 [2015]), were fairresponse to the defense summation (see People v Halm, 81 NY2d 819, 821 [1993]; People v Johnson, 127 AD3d1234, 1234 [2015]), or do not otherwise require reversal (see People v Galloway, 54NY2d 396, 399 [1981]; cf. People v Ashwal, 39 NY2d 105, 110-111 [1976]; People v Rivera, 128 AD3d 857,858 [2015]).

The defendant's remaining contention is unpreserved for appellate review, and, in any event,without merit. Mastro, J.P., Rivera, Roman and Sgroi, JJ., concur.