Opinion
November 14, 1991
Appeal from the Supreme Court, New York County (Robert Haft, J.).
Defendant's claim that the trial court erred in denying defendant's motion for dismissal of the indictment on the ground that the People deliberately presented misleading testimony to the grand jury is unsupported by the record. The testimony in question involved an eyewitness to the incident, who testified truthfully before the grand jury that he had a previous criminal conviction. Although the presenting assistant did not explore the full extent of that witness's prior criminal history, the People adequately submitted evidence of the witness's background (People v. Lancaster, 69 N.Y.2d 20, cert denied 480 U.S. 922). Additionally, despite defendant's characterization of the eyewitness's testimony as perjurious, the record before this court does not indicate that the indictment herein was founded upon inadequate or improper evidence which would give rise to a constitutional challenge, nor was evidence of the witness's specific prior criminal convictions material to the charges against defendant (see, People v. Pelchat, 62 N.Y.2d 97). Thus, the trial court properly denied defendant's motions for dismissal of the indictment. Moreover, the trial jury heard of the witness's complete criminal conviction background.
Evidence adduced at trial was that defendant approached the complainant, a longtime friend, on the street and asked for money. When that request was denied, defendant knocked complainant to the ground and hit him over the head with a bottle, rendering him unconscious. While the victim was lying unconscious on his back, defendant (who is 6 feet 2 inches tall and weighs 210 pounds), "stomped" on the victim's abdominal and chest area by jumping up in the air and coming down with his foot three times. The "stomping" ceased only when bystanders intervened, grabbed defendant, and directed him to leave the scene. Injuries to the victim included massive internal bleeding and intestinal damage. Emergency, life-saving surgery was performed, requiring bowel reconstruction and removal of a large portion of the victim's intestine. The surgeon testified that the victim's injuries were consistent with serious abdominal trauma, generally sustained in automobile accident injury, or beating with a club wielded with violent force. Considering this evidence, and the inferences that properly could be drawn therefrom, the jury reasonably found that the People proved beyond a reasonable doubt defendant's intent to cause serious physical injury (see, People v. Barnes, 50 N.Y.2d 375).
The prosecutor's summation comments constituted appropriate response to the defense summation (see, People v. Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912) and fair comment on the evidence presented within the broad bounds of rhetorical comment (see, People v. Galloway, 54 N.Y.2d 396).
Concur — Milonas, J.P., Ellerin, Kupferman and Asch, JJ.