People v German

People v German 2016 NY Slip Op 08700 Decided on December 23, 2016 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 23, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.
1144 KA 15-01405

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

MICHAEL GERMAN, DEFENDANT-APPELLANT.

DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN T. LEEDS OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered June 25, 2015. The judgment convicted defendant, upon a jury verdict, of assault in the second degree (two counts).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of assault in the second degree (Penal Law § 120.05 [3]). We conclude that the evidence, viewed in the light most favorable to the People, is legally sufficient to support the conviction. We note that a "peace officer" is defined to include a "correction officer[] of any state correctional facility" (CPL 2.10 [25]; see Penal Law § 120.05 [3]). We further conclude that the evidence demonstrates that the victims each sustained a "physical injury," defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]; see § 120.05 [3]; see also People v Chiddick, 8 NY3d 445, 447-448). Moreover, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).

Defendant failed to preserve for our review his contention that he was deprived of due process as a result of being shackled within the view of the jurors beginning on the second day of trial (see People v Goossens, 92 AD3d 1281, 1282, lv denied 19 NY3d 960). Defendant likewise has failed to preserve for our review his contention that County Court erred in failing to give a curative instruction regarding defendant's wearing of shackles (see CPL 470.05 [2]; People v Harris, 303 AD2d 1026, 1026-1027, lv denied 100 NY2d 594). We decline to exercise our power to review those contentions as a matter of our discretion in the interest of justice (see CPL 470.15 [6] [a]).

Finally, defendant's contention that he was wrongfully excluded from a material stage of trial, i.e., sidebar conferences among the court and the attorneys at which defendant's presence might have had a substantial effect on his ability to defend against the charges (see People v Sloan, 79 NY2d 386, 392-393), "is not reviewable because he failed to provide an adequate record for appellate review' " (People v Lockett, 1 AD3d 932, 932, lv denied 1 NY3d 630, quoting People v Velasquez, 1 NY3d 44, 48; see People v Camacho, 90 NY2d 558, 560).

Entered: December 23, 2016

Frances E. Cafarell

Clerk of the Court