Opinion
10481 Ind. 4477/16
12-03-2019
The PEOPLE of the State of New York, Respondent, v. Angelique MEJIAS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Diana Wang of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Diana Wang of counsel), for respondent.
Acosta, P.J., Renwick, Mazzarelli, Kapnick, JJ.
Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered November 27, 2017, convicting defendant, after a jury trial, of assault in the second degree and disorderly conduct, and sentencing her to an aggregate term of five years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson , 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations, including those relating to the element of physical injury. The evidence warranted the inference that the victim's injuries went beyond mere "petty slaps, shoves, kicks and the like" ( Matter of Philip A. , 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980] ), and that they caused "more than slight or trivial pain" ( People v. Chiddick , 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ; see also People v. Guidice , 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ).
Defendant failed to preserve her claim that a summation remark by the prosecutor rendered the court's adverse inference charge inadequate to remedy the prejudice resulting from the loss of a videotape of the incident, and we decline to review it in the interest of justice. As an alternative holding, we find that the isolated summation remark at issue did not negate the adverse inference charge, which was the only remedy defendant ever requested, and that it did not require a mistrial (see generally People v. Overlee , 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; People v. D'Alessandro , 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ). We have considered and rejected defendant's ineffective assistance of counsel claim. We perceive no basis for reducing the sentence.