Opinion
KA 17–00747 1236
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Don P. SIPP, Defendant–appellant.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT–APPELLANT. BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT–APPELLANT.
BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of assault in the second degree ( Penal Law § 120.05[4] ), defendant contends that the conviction is not supported by legally sufficient evidence that the victim sustained a serious physical injury. Contrary to the People's contention, defendant's challenge to the sufficiency of the evidence is preserved for our review inasmuch as defendant raised that deficiency during his motion for a trial order of dismissal, and thus the issue was "specifically confronted and resolved" by County Court ( People v. Feingold, 7 N.Y.3d 288, 290, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006] ). Nevertheless, when the evidence is viewed in the light most favorable to the People (see People v. Reed, 22 N.Y.3d 530, 534, 983 N.Y.S.2d 752, 6 N.E.3d 1108 [2014], rearg. denied 23 N.Y.3d 1009, 992 N.Y.S.2d 770, 16 N.E.3d 1249 [2014] ), "a rational person could conclude that the trial evidence was legally sufficient" to establish a serious physical injury ( People v. Smith, 6 N.Y.3d 827, 829, 817 N.Y.S.2d 575, 850 N.E.2d 622 [2006], cert denied 548 U.S. 905, 126 S.Ct. 2971, 165 L.Ed.2d 953 [2006] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), i.e., serious and protracted disfigurement to the victim's face (see § 10.00[10]; People v. Coote, 110 A.D.3d 485, 485, 972 N.Y.S.2d 263 [1st Dept. 2013], lv denied 22 N.Y.3d 1198, 986 N.Y.S.2d 418, 9 N.E.3d 913 [2014] ; see also People v. Manigault, 145 A.D.3d 1428, 1429, 44 N.Y.S.3d 620 [4th Dept. 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; People v. Reitz, 125 A.D.3d 1425, 1425–1426, 3 N.Y.S.3d 228 [4th Dept. 2015], lv denied 26 N.Y.3d 934, 17 N.Y.S.3d 97, 38 N.E.3d 843 [2015], reconsideration denied 26 N.Y.3d 1091, 23 N.Y.S.3d 648, 44 N.E.3d 946 [2015] ; cf. People v. McKinnon, 15 N.Y.3d 311, 316, 910 N.Y.S.2d 767, 937 N.E.2d 524 [2010] ).
Contrary to defendant's further contention, the court did not err in refusing to charge the jury on the lesser included offense of assault in the third degree ( Penal Law § 120.00[2] ). Based on the number and sizes of the scars to her face, there is no reasonable view of the evidence that would support a finding that the victim sustained only a physical injury as opposed to a serious physical injury (see CPL 300.50[1] ; People v. Richardson, 57 A.D.3d 410, 410, 870 N.Y.S.2d 292 [1st Dept. 2008], lv denied 12 N.Y.3d 787, 879 N.Y.S.2d 64, 906 N.E.2d 1098 [2009] ; cf. People v. Trombley, 97 A.D.3d 903, 903–904, 947 N.Y.S.2d 686 [3d Dept. 2012] ; see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ).
Defendant also contends that he was denied a fair trial when evidence of uncharged crimes was admitted at trial without a Ventimiglia hearing or curative instructions. As defendant correctly concedes, his contention is not preserved for our review (see People v. Hogue, 133 A.D.3d 1209, 1210, 19 N.Y.S.3d 640 [4th Dept. 2015], lv denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 [2016] ; People v. Mediak, 217 A.D.2d 961, 962, 631 N.Y.S.2d 264 [4th Dept. 1995], lv denied 87 N.Y.2d 848, 638 N.Y.S.2d 607, 661 N.E.2d 1389 [1995] ). In any event, we conclude that defendant was not denied a fair trial inasmuch as the fleeting reference to prior "physical altercations" between defendant and the victim was admissible as "necessary background information on the nature of the relationship" ( People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ; see Hogue, 133 A.D.3d at 1211, 19 N.Y.S.3d 640 ); there was no evidence that defendant's possession of hunting items or a muzzle-loader was illegal (see People v. Humphrey, 109 A.D.3d 1173, 1174, 971 N.Y.S.2d 631 [4th Dept. 2013], lv denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ; People v. Hucks, 292 A.D.2d 833, 833, 738 N.Y.S.2d 792 [4th Dept. 2002], lv denied 98 N.Y.2d 697, 747 N.Y.S.2d 416, 776 N.E.2d 5 [2002] ); and a peripheral reference to defendant's possession of a marihuana plant "does not warrant any corrective action in the interest of justice" ( People v. Chaplin, 134 A.D.3d 1148, 1152, 21 N.Y.S.3d 418 [3d Dept. 2015], lv denied 27 N.Y.3d 1067, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ).
Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we reject defendant's contention that he was denied meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Finally, we conclude that the sentence is not unduly harsh or severe.
All concur except CARNI and DEJOSEPH , JJ., who dissent and vote to reverse in accordance with the following memorandum: We respectfully dissent because we disagree with the majority's conclusion that County Court did not err in refusing to charge the jury on the lesser included offense of assault in the third degree ( Penal Law § 120.00[2] ). Upon viewing the evidence in the light most favorable to defendant (see People v. Rivera, 23 N.Y.3d 112, 120–121, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014] ), we conclude that there is a reasonable view of the evidence of the victim's scars to support a finding that the victim sustained only physical injury and not serious physical injury (see id. at 121, 989 N.Y.S.2d 446, 12 N.E.3d 444 ; People v. Trombley, 97 A.D.3d 903, 903–904, 947 N.Y.S.2d 686 [3d Dept. 2012] ). Consequently, we vote to reverse the judgment and grant a new trial on count four of the indictment (see generally People v. Van Norstrand, 85 N.Y.2d 131, 136, 623 N.Y.S.2d 767, 647 N.E.2d 1275 [1995] ).