REITZ, MICHAEL T., PEOPLE v

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

1402 KA 13-00520 PRESENT: SMITH, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

V MEMORANDUM AND ORDER

MICHAEL T. REITZ, DEFENDANT-APPELLANT.

LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered January 4, 2013. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree (two counts), assault in the first degree (two counts) and endangering the welfare of a child (three counts).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts each of burglary in the first degree (Penal Law § 140.30 [2], [3]) and assault in the first degree (§ 120.10 [1], [2]), defendant contends that he was denied the effective assistance of counsel. We reject that contention. Although we agree with defendant that defense counsel should not have questioned him about a prior conviction after County Court’s Sandoval ruling precluded the People from doing so, we conclude that defense counsel’s error was “not so egregious and prejudicial that [it] deprived defendant of his right to a fair trial” (People v Morrison, 48 AD3d 1044, 1045, lv denied 10 NY3d 867; see People v Hobot, 84 NY2d 1021, 1024; cf. People v Webb, 90 AD3d 1563, 1564, amended on rearg 92 AD3d 1268).

We likewise reject defendant’s contention that his conviction of assault in the first degree under Penal Law § 120.10 (1) and (2) is not supported by legally sufficient evidence of serious physical injury and serious disfigurement, respectively. With respect to section 120.10 (1), “[t]he element of serious physical injury was satisfied by evidence supporting the conclusion that the wound[] inflicted by defendant caused serious disfigurement to [the] victim[’s] face[]” (People v Matos, 121 AD3d 545, 546; see People v Snyder, 100 AD3d 1367, 1368; see generally People v Stewart, 18 NY3d 831, 832). With respect to section 120.10 (2), a person is guilty of -2- 1402 KA 13-00520

assault in the first degree if he or she “[w]ith intent to disfigure another person seriously and permanently . . . causes such injury” (id.), and “[a] person is ‘seriously’ disfigured when a reasonable observer would find [his or] her altered appearance distressing or objectionable” (People v McKinnon, 15 NY3d 311, 315). Here, the evidence at trial established that the victim sustained a four-inch- long wound to her cheek that left a permanent scar. “[V]iewed as a whole, and especially considering the prominent location of the wound on the face, [the evidence at trial] support[s] the inference that at the time of trial the scar[] remained seriously disfiguring under the McKinnon standard” (People v Coote, 110 AD3d 485, 485, lv denied 22 NY3d 1198; see Matos, 121 AD3d at 546; People v Gumbs, 107 AD3d 548, 548, lv denied 22 NY3d 1156, cert denied ___ US ___, 135 S Ct 143).

Viewing the evidence in light of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted]), and “[i]t was within the jury’s province to reject the testimony of defendant’s alibi witnesses” (People v Smith, 278 AD2d 837, 837, lv denied 96 NY2d 835).

Entered: February 6, 2015 Frances E. Cafarell Clerk of the Court