People v. Prior

Appellate Division of the Supreme Court of New York

People v. Prior

23 A.D.3d 1076, 804 N.Y.S.2d 877

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 10, 2005

StatusPublished

Cited by7 cases

This text of 23 A.D.3d 1076 (People v. Prior) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Prior, 23 A.D.3d 1076, 804 N.Y.S.2d 877 (N.Y. Ct. App. 2005).

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Opinion

Appeal from a judgment of thé Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered January 22, 2003. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [2]) for causing physical injury to the victim by means of a dangerous instrument. Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention is without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The victim testified that she has a permanent two-inch scar on her left earlobe, that the area remains painful and that she can no longer wear earrings (see Penal Law § 10.00 [9]; § 120.05 [2]). Although the object used by defendant may have been a cell phone or a box cutter, the object nevertheless became a dangerous instrument when defendant used it “in a manner which render[ed] it readily capable of causing serious physical injury” (People v Carter, 53 NY2d 113, 116 [1981]; see also Penal Law § 10.00 [13]). Defendant’s challenge to the legal sufficiency of the evidence before the grand jury is not properly before us. “It is well settled that, ‘when a judgment of conviction has been rendered based upon legally sufficient trial evidence, appellate review of a claim alleging insufficiency of Grand Jury evidence is barred’ ” (People v Bastian, 294 AD2d 882, 883 [2002], lv [1077]*1077denied 98 NY2d 694 [2002], quoting People v Wiggins, 89 NY2d 872, 874 [1996]; see CPL 210.30 [6]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, J.P., Martoche, Pine, Lawton and Hayes, JJ.

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Appeal from a judgment of thé Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered January 22, 2003. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [2]) for causing physical injury to the victim by means of a dangerous instrument. Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention is without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The victim testified that she has a permanent two-inch scar on her left earlobe, that the area remains painful and that she can no longer wear earrings (see Penal Law § 10.00 [9]; § 120.05 [2]). Although the object used by defendant may have been a cell phone or a box cutter, the object nevertheless became a dangerous instrument when defendant used it “in a manner which render[ed] it readily capable of causing serious physical injury” (People v Carter, 53 NY2d 113, 116 [1981]; see also Penal Law § 10.00 [13]). Defendant’s challenge to the legal sufficiency of the evidence before the grand jury is not properly before us. “It is well settled that, ‘when a judgment of conviction has been rendered based upon legally sufficient trial evidence, appellate review of a claim alleging insufficiency of Grand Jury evidence is barred’ ” (People v Bastian, 294 AD2d 882, 883 [2002], lv [1077]*1077denied 98 NY2d 694 [2002], quoting People v Wiggins, 89 NY2d 872, 874 [1996]; see CPL 210.30 [6]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, J.P., Martoche, Pine, Lawton and Hayes, JJ.

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23 A.D.3d 1076, 804 N.Y.S.2d 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-prior-nyappdiv-2005.

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