People v Cruz

People v Cruz 2015 NY Slip Op 06975 Decided on September 29, 2015 Appellate Division, First 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 September 29, 2015
Mazzarelli, J.P., Sweeny, Renwick, Manzanet-Daniels, JJ.
15722 5925/08

[*1] The People of the State of New York Respondent,

v

Janethza Cruz, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Lindsey Richards of counsel), for respondent.

Judgment, Supreme Court, New York County (Patricia Nunez, J.), rendered October 21, 2010, convicting defendant, after a jury trial, of assault in the first degree, and sentencing her to a term of five years, unanimously affirmed.

Defendant did not preserve her challenge to the sufficiency of the evidence supporting the element of serious physical injury, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The 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 (see People v McKinnon, 15 NY3d 311, 315-316 [2010]). Photographs, medical testimony, testimony from the victim, and reasonable inferences to be drawn from the evidence support the conclusion that at the time of trial, years after the crime, the victim still had a prominent and distressing facial scar (see e.g. People v Matos, 121 AD3d 545 [1st Dept 2014], lv denied 24 NY3d 1121 [2015]).

Defendant's challenges to evidence concerning a knife found at the scene of the crime, to evidence of her consciousness of guilt, to the prosecutor's summation, and to the court's charge are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits, except that we find that while a jury charge on consciousness of guilt would have been appropriate, any error was harmless (see People v Valtin, 284 AD2d 203 [1st Dept 2001], lv denied 97 NY2d 643 [2001]).

Defendant's ineffective assistance of counsel claims are generally unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, including matters of strategy, such as counsel's decision to introduce into evidence the knife that defendant now claims to be inadmissible (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that any of counsel's [*2]alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case. While defendant faults her attorney for failing to make various objections, we conclude that those objections would have been futile.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2015

CLERK