Opinion
2005-275 ORCR.
Decided July 13, 2006.
Appeal from judgments of the Justice Court of the Town of Goshen, Orange County (Thomas J. Cione, J.), rendered February 16, 2005. The judgments convicted defendant, upon jury verdicts, of assault in the third degree and official misconduct.
Judgments of conviction affirmed.
PRESENT: RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ.
Defendant, an employee of the Mid-Hudson Forensic Psychiatric Center, was charged with assault in the third degree (Penal Law § 120.00) and official misconduct (Penal Law § 195.00), by misdemeanor informations alleging that he punched a patient at the facility in the eye and mouth. Upon a review of the record, we find that the prosecutor's opening remarks in regard to the supporting depositions of three of the witnesses who were scheduled to testify at trial were not improper.
However, the prosecutor's remarks as to the supporting deposition of the fourth witness, James Phillips, who was not scheduled to testify, and who had recanted his deposition testimony, were improper. In light of the trial court's instruction that nothing said during the opening statement constituted evidence, defendant's request for a mistrial was properly denied ( see e.g. People v. Snide, 256 AD2d 812). Further, there is no evidence of prosecutorial bad faith or undue prejudice that would override the trial court instructions ( see People v. DeTore, 34 NY2d 199).
It is well settled that a witness' trial testimony may not be bolstered with evidence of prior consistent statements made before trial ( see People v. McDaniel, 81 NY2d 10; People v. McLean, 69 NY2d 426). Contrary to defendant's contention, the record does not indicate that he objected to any prior consistent statement testimony elicited from the risk manager, Lynn Spuler, during her examination by the People and, therefore, his contention with regard thereto is not preserved for appellate review ( see CPL 470.05; People v. Higgins, 216 AD2d 487). We agree with the defendant that the trial court should have sustained defendant's objections to the testimony of other witnesses regarding the complainant's prior consistent statements relating to his assault allegation against defendant. Said error, however, was harmless in light of the overwhelming evidence of defendant's guilt, and that there is no significant probability that the jury would have acquitted had it not been for this error which occurred ( see People v. Crimmins, 36 NY2d 230, 242; People v. Santana, 5 AD3d 798).
Furthermore, since defense counsel did not object to the trial court's questioning of the nurse, Gail Eppenbach, and did not attempt to register a protest — in order to apprise the court of its intrusion into the conduct of the trial — said issue is not preserved for appellate review ( see People v. Yut Wai Tom, 53 NY2d 44; see also CPL 470.05; People v. Egea, 236 AD2d 330). Moreover, we find that the physical injury evidence adduced at trial was sufficient to establish that Miller had the requisite substantial pain to constitute a physical injury within the meaning of Penal Law § 10.00 (9). Thus, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 NY2d 620), said evidence was legally sufficient to convict defendant of assault in the third degree beyond a reasonable doubt ( see e.g. People v. Williams, 24 AD3d 187). We have reviewed defendant's remaining contentions and find that they have no merit or are unpreserved for appellate review.
Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.