Opinion
2010-04068, 2010-04069.
10-01-2014
The PEOPLE, etc., respondent, v. Gregory HUBBS, appellant.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa Marlow Wolland of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa Marlow Wolland of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Opinion Appeals by the defendant from two judgments of the Supreme Court, Suffolk County (Condon, J.), both rendered March 30, 2010, convicting him of assault in the first degree and petit larceny under Indictment No. 3306–08, upon a jury verdict, and robbery in the third degree under Indictment No. 518–09, upon his plea of guilty, and imposing sentences.
ORDERED that the judgments are affirmed. The defendant contends that the evidence was legally insufficient to support his conviction of assault in the first degree because the People failed to establish that the complainant sustained serious physical injury (see Penal Law § 120.10[1] ). However, since the defendant did not advance this argument with the required specificity before the trial court, it is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Martinez, 116 A.D.3d 983, 983 N.Y.S.2d 839 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish that the complainant's injury resulted in “ serious disfigurement” (People v. McKinnon, 15 N.Y.3d 311, 315, 910 N.Y.S.2d 767, 937 N.E.2d 524 ; see Penal Law § 10.00[10] ; People v. Stewart, 18 N.Y.3d 831, 832, 939 N.Y.S.2d 273, 962 N.E.2d 764 ). In addition, the defendant argues that the evidence was legally insufficient to support his conviction of assault in the first degree because the People failed to establish that he intended to cause serious physical injury. However, viewing the evidence in the light most favorable to the prosecution (see People v.
Contes, 60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish that the defendant intended to cause serious physical injury to the complainant. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt on the count charging assault in the first degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The Supreme Court providently exercised its discretion in precluding the defendant from introducing into evidence inadmissible hearsay in a self-serving portion of a written statement he provided to a detective (see People v. Ramlall, 99 A.D.3d 815, 816, 951 N.Y.S.2d 679 ; People v. Roberts, 94 A.D.3d 1151, 942 N.Y.S.2d 812 ; People v. Oliphant, 201 A.D.2d 590, 590–591, 607 N.Y.S.2d 739 ). Contrary to the defendant's contention, the prosecution did not open the door to the admission of this evidence (see generally People v. Massie, 2 N.Y.3d 179, 777 N.Y.S.2d 794, 809 N.E.2d 1102 ).
The defendant's contention that the Supreme Court's justification charge was improper is unpreserved for appellate review, as he failed to object to the charge (see CPL 470.05[2] ; People v. Boley, 116 A.D.3d 965, 966, 983 N.Y.S.2d 830 ). In any event, the contention is without merit. The defendant's remaining contentions are without merit or do not warrant reversal under the circumstances of this case.
The defendant's sole contention regarding the conviction of robbery in the third degree under Indictment No. 518–09 is that his plea of guilty should be vacated if the conviction of assault in the first degree under Indictment No. 3306–08 is reversed. Since the defendant raises no independent claim regarding his conviction of robbery in the third degree under Indictment No. 518–09, that judgment must be affirmed in light of the affirmance of the judgment convicting the defendant of assault in the first degree and petit larceny under Indictment No. 3306–08 (see People v. Washington, 93 A.D.3d 681, 682, 938 N.Y.S.2d 923 ; cf. People v. Baker, 20 N.Y.3d 354, 364, 960 N.Y.S.2d 704, 984 N.E.2d 902 ).