People v. Dougherty

190 A.D.2d 989, 593 N.Y.S.2d 714, 1993 N.Y. App. Div. LEXIS 1166

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1993
• Status: Published

Opinion

— Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of assault in the first degree (Penal Law § 120.10 [2]) for severely beating his girlfriend’s brother. Defendant did not testify at trial. On appeal, defendant contends that the court erred (1) when it permitted his attorney to waive defendant’s constitutional right to testify in his own behalf; and (2) when it failed to determine whether defendant was aware of his right to testify and whether defendant intended to waive that right. There was no demonstrated impediment to defendant’s testifying in his own defense. Under the circumstances, there was no requirement that the court inquire further into his failure to testify (see, People v Doe, 186 AD2d 1036; People v Davis, 190 AD2d 987 [decided herewith]).

We conclude that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). In view of the vicious nature of the beating and the serious injuries inflicted upon the victim, the court did not abuse its discretion in imposing the maximum permissible sentence. (Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Assault, 1st Degree.) Present — Callahan, J. P., Green, Balio, Davis and Doerr, JJ.