Opinion
106 Ind. No. 1543/17 Case No. 2019–05309
04-27-2023
The PEOPLE of the State of New York, Respondent, v. Jason WRIGHT, Defendant–Appellant.
Mark Zeno, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Elizabeth T. Schmidt of counsel), for respondent.
Mark Zeno, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Elizabeth T. Schmidt of counsel), for respondent.
Renwick, A.P.J., Gonza´lez, Kennedy, Higgitt, JJ.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered September 10, 2019, convicting defendant, after a jury trial, of assault in the first degree, attempted assault in the first degree, and criminal possession of a weapon in the second degree (two counts), and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously affirmed.
The verdict 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] ). The element of serious physical injury required for the first-degree assault conviction was satisfied by evidence establishing that the victim sustained a "protracted impairment of health" ( Penal Law § 10.00[10] ). There is no basis for disturbing the jury's credibility determinations, including its acceptance of the victim's testimony concerning her physical condition. Two years after being shot in the knee, she could not stand or sit for a long time, had difficulty going up or down stairs, could no longer run even a short distance, and felt pain in her knee "every day" (see e. g. People v. Wong, 165 A.D.3d 468, 85 N.Y.S.3d 432 [1st Dept. 2018], lv denied 32 N.Y.3d 1116, 91 N.Y.S.3d 367, 115 N.E.3d 639 [2018] ; People v. Marquez, 49 A.D.3d 451, 853 N.Y.S.2d 553 [1st Dept. 2008], lv denied 10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409 [2008] ). This protracted impairment went far beyond mere discomfort or inconvenience.
The record supports the court's determination that, notwithstanding a witness's brief, accidental viewing of defendant in custody, she had an independent source for her identification (see Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 [1972] ; People v. Williams, 222 A.D.2d 149, 646 N.Y.S.2d 665 [1st Dept. 1996], lv denied 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346 [1996] ). The witness's attention was drawn to defendant and one of the victims as they argued before the shooting, she observed defendant under good lighting conditions for several minutes from a distance as close as eight feet, and she gave a detailed description of defendant. The witness's inability to identify defendant in a lineup was outweighed by the other relevant factors, and the record establishes a reliable in-court identification.
Defendant, by way of counsel, waived any challenge to the predicate felony statement, notwithstanding that defendant personally stated that he wanted to controvert the statement. Absent any constitutional challenge by defendant to the alleged prior felony, we see no reason to include the decision to challenge a predicate felony within the narrow category of decisions to be made by a represented defendant personally, rather than requiring "the expert judgment of counsel" ( People v. Colville, 20 N.Y.3d 20, 32, 955 N.Y.S.2d 799, 979 N.E.2d 1125 [2012] ). Contrary to defendant's argument, there is no language in CPL 400.15(3) that is inconsistent with a defendant acting through counsel. By way of contrast, when the CPL requires personal action by a defendant, it uses very specific language to that effect (see e. g. CPL 270.35[1] [consent to replacement of juror by alternate during deliberations]; CPL 320.10[1],[2] [jury trial waiver]). In any event, defendant was correctly adjudicated a second violent felony offender based upon the uncontroverted allegations in the predicate violent felony offender statement filed by the People regarding defendant's manslaughter conviction (see CPL 400.15[3] )
We perceive no basis for reducing the sentence.