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

666
KA 10-01017
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NICHOLAS A. WEST, ALSO KNOWN AS EDWARD DESHAWN
WEST, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered January 7, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree,
robbery in the first degree, robbery in the second degree and assault
in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of burglary in the first degree (Penal Law §
140.30 [4]), robbery in the first degree (§ 160.15 [4]), robbery in
the second degree (§ 160.10 [1]), and assault in the second degree (§
120.05 [2]). The conviction arises out of an incident in which
defendant and two codefendants broke into an apartment and stole money
and property from a woman inside, and defendant used a shotgun to
shoot two men—only one of whom (hereafter, shooting victim) testified
at trial—as the men fled down a hallway after coming to the apartment
door during the robbery (see People v McCullough, 128 AD3d 1510).

     Contrary to defendant’s contention, Supreme Court did not abuse
its discretion in granting the People’s challenge for cause of a
prospective juror. “In the case of a challenge for cause of an
unsworn juror, a trial court ‘should lean toward disqualifying a
prospective juror of dubious impartiality’ ” (People v Traylor, 283
AD2d 1013, 1013, lv denied 96 NY2d 869, quoting People v Branch, 46
NY2d 645, 651; see People v Arnold, 96 NY2d 358, 362). The
prospective juror in question had worked at a law firm with
codefendant’s attorney several years before the trial and, “[a]lthough
[such] a ‘nodding acquaintance’ with the [codefendant’s] trial
attorney does not compel disqualification as a matter of law” (People
v Purcell, 103 AD2d 938, 939; see People v Provenzano, 50 NY2d 420,
                                 -2-                           666
                                                         KA 10-01017

425), it was within the court’s discretion to determine that “the
better choice [was] to exclude such a juror” (Purcell, 103 AD2d at
939).

     Defendant failed to preserve for our review his contentions
concerning alleged prosecutorial misconduct (see People v Goley, 113
AD3d 1083, 1084; People v Golson, 93 AD3d 1218, 1219-1220, lv denied
19 NY3d 864), and we decline to exercise our power to review them as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Defendant also failed to preserve for our review his contention
that he was denied a fair trial by the court’s questioning of
witnesses (see People v Charleston, 56 NY2d 886, 887-888; People v
Anderson, 114 AD3d 1083, 1087, lv denied 22 NY3d 1196), and we
conclude, in any event, that the court “did not unnecessarily or
excessively interfere in the presentation of proof” or “convey to the
jury [its] opinion concerning the credibility of the witnesses or the
merits of the case” (People v Brown, 256 AD2d 1109, 1109, lv denied 93
NY2d 851; see People v Jamison, 47 NY2d 882, 883-884; see generally
People v Yut Wai Tom, 53 NY2d 44, 56-58).

     Contrary to defendant’s contention with respect to his conviction
of assault in the second degree, we conclude that the evidence is
legally sufficient to establish that the shooting victim sustained a
physical injury, i.e., that he experienced substantial pain (see Penal
Law §§ 10.00 [9]; 120.05 [2]; People v Chiddick, 8 NY3d 445, 447).
The shooting victim testified that he was shot in the arm and leg,
that being shot “[h]urt like hell” and “[f]elt like a bee sting with a
thousand pounds of pressure added to it,” and that he received pain
medication at a hospital, thereby establishing that the pain was “more
than slight or trivial” (Chiddick, 8 NY3d at 447; see People v
Stillwagon, 101 AD3d 1629, 1630, lv denied 21 NY3d 1020; People v
Henderson, 77 AD3d 1311, 1311, lv denied 17 NY3d 953). Moreover,
viewing the evidence in light of the elements of the crime of assault
in the second degree as charged to the jury (see People v Danielson, 9
NY3d 342, 349), we conclude that the verdict with respect thereto is
not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). The jury was entitled to credit the
shooting victim’s description of his injuries and resulting pain (see
People v Guidice, 83 NY2d 630, 636; People v Smith, 45 AD3d 1483,
1483, lv denied 10 NY3d 771). Finally, the sentence is not unduly
harsh or severe.




Entered:   June 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
