People v Kavvadas (Constantinos)
Annotate this CaseDecided on April 18, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and SOLOMON, JJ
2011-1507 Q CR.
The People of the State of New York, Respondent,
against
Constantinos Kavvadas, Appellant.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Suzanne J. Melendez, J.), rendered March 31, 2011. The judgment convicted defendant, upon a jury verdict, of assault in the third degree.
ORDERED that the judgment of conviction is affirmed.
In December 2008, defendant was charged with assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). The information alleged that defendant had assaulted the complainant by pushing the complainant to the ground, causing the complainant to sustain lacerations, and by striking the complainant in the face, causing a fracture to the complainant's orbital bone. In 2009, in response to defendant's demand for a bill of particulars, the People stated that they intended to prove the assault in the third degree charge by establishing that defendant had punched the complainant, causing fractures to the complainant's orbital bone. In 2011, prior to the commencement of trial, the People filed a prosecutor's information charging defendant only with assault in the third degree, which stated that "with the intent to cause physical injury to [the complainant], [defendant] caused injury, to wit: physical injury and substantial pain to . . . [the complainant]." Following a jury trial, defendant was convicted of, among other things, assault in the third degree.
On appeal from the judgment convicting him of assault in the third degree, defendant contends that the Criminal Court committed reversible error when it charged the jury that he is guilty of assault in the third degree if the jury finds that the People proved, beyond a reasonable doubt, that he had intentionally caused physical injury to the complainant, while defining physical injury as the "impairment of physical condition or substantial pain," even though the People had limited the theory of their case in the bill of particulars; that the evidence was legally insufficient; and that the verdict was against the weight of the evidence. We disagree.
Pursuant to CPL 100.50 (1), a prosecutor's information may be filed at any time before the entry of a guilty plea or commencement of a trial, and the offense charged in the original accusatory instrument is superseded by the offense charged in the prosecutor's information and, upon the defendant's arraignment upon the prosecutor's information, the offense charged in the original instrument must be dismissed by the court (see also CPL 100.35, 100.40). CPL 200.95 (1) states that a bill of particulars "is a written statement by the prosecutor specifying, as required by this section, items of factual information which are not recited in the indictment and which [*2]pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on their direct case . . . . However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."
Although the People are, generally, bound by any limitations to their theory of the case as set forth in their bill of particulars (see e.g. Matter of Corbin v Hillery, 74 NY2d 279, 290 [1989]; People v Barnes, 50 NY2d 375, 379 n 3 [1980]; People v Williams, 107 AD3d 1391 [2013]; People v Aveni, 100 AD3d 228, 243 [2012]), the bill of particulars filed herein applied to "items of factual information which are not recited in the [accusatory instrument] and which pertain to the offense charged" in the December 2008 information. Since the assault in the third degree charge contained in the December 2008 information was dismissed by the court upon defendant's arraignment upon the prosecutor's information (see CPL 100.50 [1]), the People were no longer limited by the theory of the case as set forth in their bill of particulars, which only pertained to a now-dismissed charge. Consequently, the Criminal Court's charge to the jury was proper.
Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review since he failed to raise the specific arguments he makes on appeal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). In any event, defendant's contention lacks merit. The evidence, viewed in the light most favorable to the People (see People Contes, 60 NY2d 620, 621 [1983]), was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of assault in the third degree in that the evidence—consisting of testimony, medical records, and a video—adduced at trial showed that defendant pushed the complainant to the ground outside of a Starbucks, punched the complainant in the face inside of the Starbucks, causing complainant to fracture his orbital bone, and causing him to sustain substantial pain.
Furthermore, upon the exercise of this court's factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the jury's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).
Accordingly, the judgment convicting defendant of assault in the third degree is affirmed.
Weston, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: April 18, 2014
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