Opinion
2014-04-22
The PEOPLE of the State of New York, Respondent, v. Melvin PETERS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Gina Mignola of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Gina Mignola of counsel), for respondent.
Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered December 13, 2011, convicting defendant, after a jury trial, of two counts of assault in the second degree, and sentencing him, as a second felony offender, to concurrent terms of seven years, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict 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. The element of physical injury (Penal Law § 10.00[9] ) was established because the victim's testimony proved “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] ).
The portion of the prosecutor's summation that defendant characterized as vouching for witnesses constituted permissible comment on the evidence, and it was responsive to defense attacks on the witnesses' credibility ( see People v. Overlee, 236 A.D.2d 133, 144, 666 N.Y.S.2d 572 [1st Dept.1997],lv. denied91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1992] ). Defendant's remaining challenges to the summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.
We have considered and rejected defendant's claims regarding lost exhibits and allegedly ineffective assistance of counsel. TOM, J.P., RENWICK, RICHTER, FEINMAN, GISCHE, JJ., concur.