| People v Williams |
| 2017 NY Slip Op 07183 [154 AD3d 497] |
| October 12, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Michael Williams, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Hilary Hassler of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered November 5,2014, convicting defendant, after a jury trial, of robbery in the second degree, and sentencinghim, as a second felony offender, to a term of 9 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348 [2007]). The element of physical injury was established by evidencesupporting an inference that the victim's injuries were more than mere "petty slaps, shoves, kicksand the like" (Matter of Philip A., 49 NY2d 198, 200 [1980]), and that they caused "morethan slight or trivial pain" (People vChiddick, 8 NY3d 445, 447 [2007]). The evidence showed that in the course of therobbery, in which the chain of the victim's stolen purse wrapped around her finger and she wasdragged across a street by defendant, the victim sustained a painfully swollen middle finger onher dominant hand, cuts to her knees, and bruising on her knees, arm, and finger; that shecontinued to feel pain in her right middle finger for three weeks and in her right knee for three orfour weeks; and that the finger needed to be taped to another one, preventing her from typing orhandwriting for one or two weeks and from lifting items as light as one gallon for two or threeweeks (see e.g. People v Harvey, 309 AD2d 713 [1st Dept 2003], lv denied 1NY3d 573 [2003]). The fact that the victim treated her own her injuries, such as applying ice andtaking over-the-counter pain medication, without seeking professional medical assistance, doesnot negate a finding of physical injury (see People v Guidice, 83 NY2d 630, 636 [1994]).There is no basis for disturbing the jury's credibility determinations, including its finding that thevictim testified credibly despite her admission that when she spoke to EMTs she minimized herlevel of pain. The jury could credit the victim's explanation that she minimized her pain to theEMT's because she was away from home and preferred to stay with the friends that she wasvisiting in New York, rather than go to the hospital, and felt that she "had been throughenough."
The court properly responded (see generally People v Almodovar, 62 NY2d 126, 131[1984]; People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847[1982]) to a note asking if it "matter[ed]" or was "relevant" whether the victim voluntarily heldonto her purse while defendant used the purse to drag her across the street, or whether the victimbecame entangled in the purse chain. The court's response that this distinction did not matter "asto proving the elements of the crime" could not have led the jury to believe that it could notconsider this factual question in assessing the victim's credibility. To the extent that defendant israising a constitutional claim, that claim is unpreserved and we decline to review it in the interestof justice. As an alternative holding, we reject it on the merits.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they generally involve matters not reflected in, or fully explained by, the record,regarding counsel's strategy in preparing the jury panel on voir dire for defendant'sthen-anticipated testimony (see People v Rivera, 71 NY2d 705, 709 [1988]). Therefore,since [*2]defendant has not made a CPL 440.10 motion, themerits of the ineffectiveness claims may not be addressed on appeal. Alternatively, to the extentthe record permits review, we find that defendant received effective assistance under the stateand federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];Strickland v Washington, 466 US 668 [1984]; see also People v Hendricks, 243AD2d 396 [1st Dept 1997], lv denied 91 NY2d 941 [1998]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Renwick,Andrias, Singh and Moulton, JJ.