Opinion
02-06-2015
The PEOPLE of the State of New York, Respondent v. Michael T. REITZ, Defendant–Appellant.
Linda M. Campbell, Syracuse, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, WHALEN AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts each of burglary in the first degree (Penal Law § 140.30[2], [3] ) and assault in the first degree (§ 120.10 [1 ], [2] ), defendant contends that he was denied the effective assistance of counsel. We reject that contention. Although we agree with defendant that defense counsel should not have questioned him about a prior conviction after County Court's Sandoval ruling precluded the People from doing so, we conclude that defense counsel's error was “not so egregious and prejudicial that [it] deprived defendant of his right to a fair trial” (People v. Morrison, 48 A.D.3d 1044, 1045, 852 N.Y.S.2d 495, lv. denied 10 N.Y.3d 867, 860 N.Y.S.2d 494, 890 N.E.2d 257 ; see People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 ; cf. People v. Webb, 90 A.D.3d 1563, 1564, 935 N.Y.S.2d 423, amended on rearg. 92 A.D.3d 1268, 937 N.Y.S.2d 911 ).
We likewise reject defendant's contention that his conviction of assault in the first degree under Penal Law § 120.10(1) and (2) is not supported by legally sufficient evidence of serious physical injury and serious disfigurement, respectively. With respect to section 120.10(1), “[t]he element of serious physical injury was satisfied by evidence supporting the conclusion that the wound [ ] inflicted by defendant caused serious disfigurement to [the] victim['s] face[ ]” (People v. Matos, 121 A.D.3d 545, 546, 993 N.Y.S.2d 889 ; see People v. Snyder, 100 A.D.3d 1367, 1368, 953 N.Y.S.2d 430 ; see generally People v. Stewart, 18 N.Y.3d 831, 832, 939 N.Y.S.2d 273, 962 N.E.2d 764 ). With respect to section 120.10(2), a person is guilty of assault in the first degree if he or she “[w]ith intent to disfigure another person seriously and permanently ... causes such injury” (id. ), and “[a] person is ‘seriously’ disfigured when a reasonable observer would find [his or] her altered appearance distressing or objectionable” (People v. McKinnon, 15 N.Y.3d 311, 315, 910 N.Y.S.2d 767, 937 N.E.2d 524 ). Here, the evidence at trial established that the victim sustained a four-inch-long wound to her cheek that left a permanent scar. “[V]iewed as a whole, and especially considering the prominent location of the wound on the face, [the evidence at trial] support[s] the inference that at the time of trial the scar[ ] remained seriously disfiguring under the McKinnon standard” (People v. Coote, 110 A.D.3d 485, 485, 972 N.Y.S.2d 263, lv. denied 22 N.Y.3d 1198, 986 N.Y.S.2d 418, 9 N.E.3d 913 ; see Matos, 121 A.D.3d at 546, 993 N.Y.S.2d 889 ; People v. Gumbs, 107 A.D.3d 548, 548, 968 N.Y.S.2d 452, lv. denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, cert. denied ––– U.S. ––––, 135 S.Ct. 143, 190 L.Ed.2d 107 ).
Viewing the evidence in light of the crimes 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 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ), and “[i]t was within the jury's province to reject the testimony of defendant's alibi witnesses” (People v. Smith, 278 A.D.2d 837, 837, 718 N.Y.S.2d 777, lv. denied 96 N.Y.2d 835, 729 N.Y.S.2d 456, 754 N.E.2d 216 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.