People v Branch (Harry)

[*1] People v Branch (Harry) 2007 NY Slip Op 51271(U) [16 Misc 3d 128(A)] Decided on June 20, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 20, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-895 Q CR.

The People of the State of New York, Respondent,

against

Harry Branch, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Fernando M. Camacho, J.), rendered May 20, 2005. The judgment convicted defendant, upon a jury verdict, of assault in the third degree, criminal possession of a weapon in the fourth degree, criminal trespass in the third degree, attempted petit larceny and harassment.

Judgment of conviction affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of assault in the third degree beyond a reasonable doubt (Penal Law § 120.00 [1]) since the evidence established, inter alia, that complainant sustained a "physical injury" within the meaning of Penal Law § 10.00 (9) (see Matter of Philip A., 49 NY2d 198, 200 [1980]). The complainant testified that after defendant hit him with a milk crate, he sustained a laceration to his nose which bled, his cheek and nose swelled, and he experienced pain for about a week after the incident.

Defendant's contention, that the evidence was legally insufficient to establish his guilt of criminal possession of a weapon in the fourth degree beyond a reasonable doubt (Penal Law § 265.01 [2]) because the milk crate did not constitute a dangerous instrument since it did not cause a serious physical injury, is not preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in a light most favorable to the [*2]prosecution (People v Contes, 60 NY2d 620, supra), we find that it was legally sufficient even though no serious physical injury was sustained, since the milk crate was used in a manner capable of causing a serious physical injury, thereby rendering it a dangerous instrument (see Penal Law § 10.00 [10], [13]; § 265.01 [2]; People v Carter, 53 NY2d 113, 116 [1981]; People v Russell, 13 AD3d 267, 268 [2004]; People v Scipio, 169 AD2d 596 [1991]).

As for defendant's contention that the court below erroneously denied his challenges for cause against two prospective jurors, we respectfully disagree.Criminal Procedure Law section 270.20 (1) (b) provides that a party may challenge a prospective juror for cause if the juror "has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial." Upon such a challenge, a juror who expresses doubt about his or her ability to serve impartially must be excused, unless the juror states unequivocally on the record that he or she can be fair and impartial (see People v Arnold, 96 NY2d 358, 362 [2001]).

Applying these principles here, we conclude that the trial court did not improvidently exercise its discretion in denying defendant's challenges for cause. Although the initial response by prospective juror number 2 to defense counsel's inquiry concerning the burden of proof was confusing, upon further inquiry, he unequivocally stated that the People had the burden of proof. He further assured the court that he would hold the prosecution to its burden and that he would strictly follow the court's instructions. Similarly, although prospective juror number 3 initially misstated who had the burden of proof, he subsequently stated, in unambiguous terms, that the prosecution bore the burden of proving defendant's guilt beyond a reasonable doubt. Upon the court's further inquiry, it was clear that the juror's initial statements evinced some confusion concerning the identity of the prosecutor. The juror, again, unequivocally affirmed that he would hold the prosecution to its burden, that he would not shift the burden to the defense and that he would follow the court's instructions. Notwithstanding the court's invitation, defense counsel declined to question either juror further and raised no additional objections. Based on the prospective jurors' unambiguous assurances following the court's inquiry, the court below properly denied defendant's challenges for cause.

Finally, to the extent defendant now claims, on appeal, that the court never sought clarification of either juror's stated opinions that defendant had broken the law, defendant never asserted this argument as a basis for his for-cause challenges.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.