Opinion
525 KA 18-00492
10-02-2020
The PEOPLE of the State of New York, Respondent, v. Jason E. CARPENTER, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree ( Penal Law § 120.05 [1] ), arising from an altercation in which defendant punched the victim in the face. We affirm.
Defendant contends that he was deprived of a fair trial because, even in the absence of a for-cause challenge from either side, County Court should have excluded two prospective jurors who purportedly exhibited actual bias ( CPL 270.20 [1] [b] ) and another prospective juror who had an implied bias ( CPL 270.20 [1] [c] ). We reject that contention. Even assuming, arguendo, that the court erred in failing, sua sponte, to exclude the prospective jurors for cause, we conclude that "the error does not require reversal because defendant had not exhausted his peremptory challenges and did not peremptorily challenge th[e] prospective juror[s]" ( People v. Arguinzoni , 48 A.D.3d 1239, 1241, 852 N.Y.S.2d 546 [4th Dept. 2008], lv denied 10 N.Y.3d 859, 860 N.Y.S.2d 485, 890 N.E.2d 248 [2008] ; see CPL 270.20 [2] ; People v. Green , 179 A.D.3d 1516, 1516, 118 N.Y.S.3d 853 [4th Dept. 2020], lv denied 35 NY3d 993, 125 N.Y.S.3d 628, 149 N.E.3d 389 [2020], reconsideration denied 35 N.Y.3d 1045, 127 N.Y.S.3d 841, 151 N.E.3d 522 [2020] ). Contrary to defendant's related contention, we conclude on this record that defendant has "failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge th[e] prospective jurors" ( People v. Mahoney , 175 A.D.3d 1034, 1035, 108 N.Y.S.3d 104 [4th Dept. 2019], lv denied 35 N.Y.3d 943, 124 N.Y.S.3d 293, 147 N.E.3d 563 [2020] ; see People v. Maffei , 35 N.Y.3d 264, 265-274, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] ; People v. Barboni , 21 N.Y.3d 393, 406-407, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013] ). To the extent that defendant's contention is dependent on matters outside the record on direct appeal, "the appropriate procedure for the litigation of defendant's challenge to his counsel's performance is a CPL 440.10 motion" ( Maffei , 35 N.Y.3d at 266, 127 N.Y.S.3d 403, 150 N.E.3d 1169 ).
Defendant's contention that the evidence is legally insufficient because the testimony of the People's witnesses was inconsistent is not preserved for our review inasmuch as defendant did not raise that ground in support of his motion for a trial order of dismissal (see People v. Graham , 174 A.D.3d 1486, 1490, 105 N.Y.S.3d 756 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 759, 138 N.E.3d 488 [2019] ; People v. Whitfield , 255 A.D.2d 924, 924-925, 682 N.Y.S.2d 741 [4th Dept. 1998], lv denied 93 N.Y.2d 981, 695 N.Y.S.2d 67, 716 N.E.2d 1112 [1999] ; see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). We reject defendant's related contention that he was denied effective assistance of counsel because defense counsel failed to preserve that challenge for our review. "A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success" ( People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ; see People v. Bell , 176 A.D.3d 1634, 1635, 110 N.Y.S.3d 188 [4th Dept. 2019], lv denied 34 N.Y.3d 1075, 116 N.Y.S.3d 160, 139 N.E.3d 818 [2019] ).
Contrary to defendant's further contention, we conclude that the evidence is legally sufficient to establish that the victim sustained a serious physical injury in the form of protracted impairment of health ( Penal Law § 10.00 [10] ). The People presented testimony and medical records establishing that the victim sustained multiple, extensive facial fractures, which required surgery and the permanent placement of a plate in her face. The victim experienced pain and difficulty eating for months after the incident, and she continued to experience shooting pains and numbness at the time of trial as a result of nerve damage that, according to the medical evidence, may never resolve (see People v. Payne , 115 A.D.3d 439, 440, 981 N.Y.S.2d 521 [1st Dept. 2014], lv denied 23 N.Y.3d 1041, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014] ; People v. Ford , 114 A.D.3d 1273, 1274, 980 N.Y.S.2d 219 [4th Dept. 2014], lv denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ; People v. Nicholson , 97 A.D.3d 968, 969, 948 N.Y.S.2d 465 [3d Dept. 2012], lv denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012] ; cf. People v. Stewart , 18 N.Y.3d 831, 832-833, 939 N.Y.S.2d 273, 962 N.E.2d 764 [2011] ).
We also reject defendant's alternative contention that the verdict is against the weight of the evidence due to inconsistencies in the testimony of the People's witnesses. Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the "inconsistencies are not so substantial as to render the verdict against the weight of the evidence" ( People v. Bailey , 90 A.D.3d 1664, 1666, 935 N.Y.S.2d 822 [4th Dept. 2011], lv denied 19 N.Y.3d 861, 947 N.Y.S.2d 410, 970 N.E.2d 433 [2012] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Here, the " ‘[i]ssues of identification and credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury[,] and there is no basis for disturbing its determinations’ " ( People v. Odums , 121 A.D.3d 1503, 1504, 993 N.Y.S.2d 594 [4th Dept. 2014], lv denied 26 N.Y.3d 1042, 22 N.Y.S.3d 171, 43 N.E.3d 381 [2015] ; see People v. Sommerville , 159 A.D.3d 1515, 1516, 72 N.Y.S.3d 704 [4th Dept. 2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ).
With respect to the remaining instances of purported ineffective assistance raised by defendant on appeal, we conclude that defendant has failed to demonstrate a lack of strategic or other legitimate explanations for defense counsel's alleged shortcomings (see generally People v. Benevento , 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). Finally, contrary to defendant's contention, the sentence is not unduly harsh or severe.