Opinion
5634 5635 Ind. 3333/13
02-08-2018
The PEOPLE of the State of New York, Respondent, v. James HOWARD, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock–Pratt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock–Pratt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Andrias, Kapnick, Moulton, JJ.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered May 19, 2015, as amended May 19, 2016, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.
The court providently exercised its discretion when it precluded defendant from cross-examining the police witnesses about a civil lawsuit he had filed against them after his arrest, in which he claimed that they used excessive force in making the instant arrest. The ruling did not deprive defendant of his right to cross-examine witnesses and present a defense (see Crane v. Kentucky, 476 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986] ; Delaware v. Van Arsdall, 475 U.S. 673, 678–679, 106 S.Ct. 1431, 89 L.Ed.2d 674 [1986] ). Defendant did not seek to cross-examine the officers about the underlying facts of the lawsuit (see People v. Smith, 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] ), which are essentially the same facts litigated at this trial, but about the lawsuit itself. Defendant has not demonstrated a "good faith basis" for the proposed cross-examination ( People v. Spencer, 20 N.Y.3d 954, 956, 959 N.Y.S.2d 112, 982 N.E.2d 1245 [2012] ). The principal defense theory was that the officers' account of this arrest was false from its inception. Defendant's contention that the onset of the lawsuit gave the officers a new motive to create an even more fabricated version of the incident, because the officers had now acquired an incentive to insulate themselves from civil liability, is speculative and unsupported. Furthermore, any probative value would have been outweighed by the prejudicial effect of potentially misleading the jury about the significance of the lawsuit. Among other things, the jurors might not have been familiar with the effect of indemnification under General Municipal Law § 50–k on the officers' alleged "financial interest" in the case.
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 injured officer's descriptions of his level of pain (see People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ). The element of physical injury was satisfied by proof showing that the officer required a suture to the cut on his hand as well as pain medication, and that he experienced pain and tenderness the following two weeks, which prevented him from writing and grabbing with his thumb (see e. g. People v. Moye, 81 A.D.3d 408, 915 N.Y.S.2d 554 [1st Dept. 2011], lv denied 16 N.Y.3d 861, 923 N.Y.S.2d 423, 947 N.E.2d 1202 [2011] ; People v. Smith, 283 A.D.2d 208, 726 N.Y.S.2d 12 [1st Dept. 2001], lv denied 96 N.Y.2d 907, 730 N.Y.S.2d 806, 756 N.E.2d 94 [2001] ; People v. Marsh, 264 A.D.2d 647, 696 N.Y.S.2d 14 [1st Dept. 1999], lv denied 94 N.Y.2d 825, 702 N.Y.S.2d 596, 724 N.E.2d 388 [1999] ). The jury could have reasonably found that this cut 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 it 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] ). We find it unnecessary to address other forms of injury that the officer may have sustained.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
We perceive no basis for directing, in the interest of justice, that defendant's sentence be served concurrently with his sentence on his robbery conviction. Notably, we have already rejected defendant's request for similar relief on his appeal from the robbery conviction ( People v. Moye, 154 A.D.3d 546, 61 N.Y.S.3d 897 [1st Dept. 2017] ), and we see no reason to depart from that determination.
Defendant's remaining contentions, including his challenges to the People's summation, are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find that none of these arguments warrants reversal.