Opinion
May 10, 2000.
Appeal from Judgment of Cattaraugus County Court, Himelein, J. — Assault, 2nd Degree.
Judgment unanimously affirmed.
Before: Wisner, J. P., Hurlbutt, Balio and Lawton, JJ.
Memorandum:
Defendant was convicted upon a jury verdict of assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the third degree (Penal Law § 265.02) and sentenced as a second felony offender to consecutive terms of imprisonment of 4½ years and 3½ to 7 years respectively. Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see, People v. Gray, 86 N.Y.2d 10, 19). Were we to consider the issue, we would conclude that the evidence, viewed in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620, 621), is legally sufficient. Based upon the statutory presumption of Penal Law § 265.15(4), the jury was entitled to infer from defendant's possession of the dagger that defendant intended to use it unlawfully against another ( see generally, People v. Walcott, 235 A.D.2d 368, 368-369, lv denied 90 N.Y.2d 898; People v. Lucas, 186 A.D.2d 589, lv denied 80 N.Y.2d 1028). There is likewise sufficient evidence to support the finding that the victim's comminuted fracture of the nose, which required surgery, constitutes a serious physical injury (see, Penal Law § 10.00; § 120.05[1]; Matter of Dawn S., 201 A.D.2d 918; People v. Virgo, 197 A.D.2d 458, lv denied 82 N.Y.2d 905). Further, the evidence is legally sufficient to disprove the defense of justification beyond a reasonable doubt. The jury could have reasonably concluded from the evidence that the victim justifiably jumped on defendant in order to prevent defendant from shooting him ( cf., People v. King, 186 A.D.2d 683, lv denied 81 N.Y.2d 842; People v. White, 162 A.D.2d 297, 298, lv denied 77 N.Y.2d 883).
Defendant also failed to preserve for our review his contention that County Court erred in admitting expert testimony of law enforcement officers that the knife possessed by defendant was a "dagger" within the meaning of Penal Law § 265.01(2) ( see, People v. Highsmith, 254 A.D.2d 768, 769, lv denied 92 N.Y.2d 983, 1033). In any event, the court did not abuse its discretion in receiving that testimony because the subject thereof is not within the common knowledge and experience of jurors ( see, People v. Cronin, 60 N.Y.2d 430, 433). Contrary to the contention of defendant, the court's Sandoval ruling did not constitute an abuse of discretion ( see, People v. Walker, 83 N.Y.2d 455, 458-459; People v. Sandoval, 34 N.Y.2d 371, 375; People v. Laraby, 219 A.D.2d 817, lv denied 88 N.Y.2d 849, 937).
Also unpreserved for our review is the contention of defendant that he was deprived of a fair trial by improper remarks during the prosecutor's summation ( see, People v. Romanelli, 239 A.D.2d 940, 941, lv denied 90 N.Y.2d 910; People v. Bell, 234 A.D.2d 915, 916, lv denied 89 N.Y.2d 1009). In any event, the prosecutor s remarks on summation, with the exception of one remark that tended to shift the burden of proof to defendant, constituted fair comment on the evidence. The single improper comment was not so egregious that defendant was thereby deprived of a fair trial ( see, People v. Galloway, 54 N.Y.2d 396, 401; People v. Rubin, 101 A.D.2d 71, 77, lv denied 63 N.Y.2d 711).
We reject the contention of defendant that he was denied effective assistance of counsel. The record establishes that defendant received meaningful representation ( see, People v. Hobot, 84 N.Y.2d 1021, 1022; People v. Baldi, 54 N.Y.2d 137, 147). Further, the court did not err in imposing consecutive terms of imprisonment; the two offenses were not "committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other" (Penal Law § 70.25). Finally, the sentence is neither unduly harsh nor severe.