People v. Joco

83 A.D.3d 608, 921 N.Y.S.2d 254

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 2011
• Status: Published

Opinion

Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered November 21, 2008, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of seven years, unanimously affirmed.

Defendant did not preserve his 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. There was ample evidence that the victim sustained permanent or prolonged injuries and disfigurement, including, among other things, the total destruction of an eye socket, which had to be replaced by a permanent metal plate.

The court properly exercised its discretion in allowing a witness to perform a limited demonstration of the manner in which defendant struck the victim with a bat (see People v Acevedo, 40 NY2d 701, 704 [1976]). The demonstration tended to explain and illustrate the witness’s testimony, and it was relevant to refute defendant’s justification defense. Concur—Gonzalez, P.J., Sweeny, Moskowitz, Acosta and Manzanet-Daniels, JJ.