Opinion
1519 KA 13–01429
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Willie J. BAKER, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, TREVETT CRISTO SALZER & ANDOLINA, P.C. (ERIC M. DOLAN OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIE J. BAKER, DEFENDANT–APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, TREVETT CRISTO SALZER & ANDOLINA, P.C. (ERIC M. DOLAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIE J. BAKER, DEFENDANT–APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting him following a jury trial of assault in the first degree ( Penal Law § 120.10[1] ), defendant contends that the evidence of serious physical injury is legally insufficient to support the conviction. We reject that contention. Serious physical injury, as defined in the Penal Law, "means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (§ 10.00[10] ). Here, the stab wound inflicted by defendant to the victim's left arm and elbow resulted in protracted impairment inasmuch as it caused the victim to be unable to extend the arm for several months after the attack, and extensive surgery was required to repair the injury (see People v. Joyce , 150 A.D.3d 1632, 1633, 54 N.Y.S.3d 472 [4th Dept. 2017] ; People v. Heyliger , 126 A.D.3d 1117, 1119, 5 N.Y.S.3d 566 [3d Dept. 2015], lv denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 [2015] ; People v. Rice, 90 A.D.3d 1237, 1238, 935 N.Y.S.2d 169 [3d Dept. 2011], lv denied 18 N.Y.3d 961, 944 N.Y.S.2d 490, 967 N.E.2d 715 [2012], reconsideration denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 [2012] ). Moreover, the stab wound inflicted by defendant to the webbing of the victim's hand resulted in nerve damage to her thumb, causing permanent numbness (see People v. Willock, 298 A.D.2d 161, 162, 748 N.Y.S.2d 17 [1st Dept. 2002], lv denied 99 N.Y.2d 566, 754 N.Y.S.2d 219, 784 N.E.2d 92 [2002] ).
Defendant contends that he was denied effective assistance of counsel on the ground that, during summation, defense counsel conceded that defendant had caused serious physical injury to the victim. We reject that contention inasmuch as defendant failed to demonstrate the " ‘absence of strategic or other legitimate explanations' " for making that concession ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). Indeed, by acknowledging that the victim suffered serious physical injury in light of compelling evidence of the same, defense counsel directed the jury's attention elsewhere, i.e., to whether the People established the element of intent.
We reject defendant's further contention in his pro se supplemental brief that Supreme Court abused its discretion in refusing to allow the testimony of a witness concerning circumstantial evidence that the victim may have sexually abused her son on prior occasions. Such testimony was irrelevant and unnecessary inasmuch as it would not have established the defense of justification, i.e., that, at the time of the stabbing, defendant reasonably believed that it was necessary to use physical force to defend the child from the use or imminent use of unlawful physical force (see generally People v. Goetz, 68 N.Y.2d 96, 105–106, 506 N.Y.S.2d 18, 497 N.E.2d 41 [1986] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.