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

337
KA 11-01926
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FELIX NOGUEL, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered May 31, 2006. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree.

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

     Memorandum: Defendant was convicted following a jury trial of
assault in the second degree (Penal Law § 120.05 [2]), arising from an
incident in which he struck a homeless panhandler in the head with a
brick. Defendant contends that County Court should have discharged a
sworn juror who disclosed at trial that he knew the victim from a
homeless shelter at which the juror volunteered. As defendant
correctly concedes, he waived that contention by agreeing with the
prosecutor that the juror was not “grossly unqualified” to continue
serving within the meaning of CPL 270.35 (1) (see People v Hinton, 302
AD2d 1008, 1008-1009, lv denied 100 NY2d 539).

     We reject defendant’s further contention that he was deprived of
effective assistance of counsel based on, inter alia, defense
counsel’s failure to challenge the juror in question. Although the
juror disclosed during voir dire that he volunteered at a homeless
shelter, he did not realize that he knew the victim until he saw a
photograph of him at trial. The juror promptly notified the court
that he recognized the victim from the photograph and, during a
subsequent in camera interview, he stated that he might have
“sensitivity” to the victim, whom he had met “a number of times” at
the homeless shelter. The juror unequivocally stated, however, that
he could disregard what he knew about the victim and render a verdict
based solely on the evidence at trial. The juror further stated
without equivocation that he could follow the court’s instructions to
render a verdict free from sympathy to anyone. It is well settled
                                 -2-                           337
                                                         KA 11-01926

that defense counsel cannot be deemed ineffective for failing to “make
a motion or argument that has little or no chance of success” (People
v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702; see People v
Caban, 5 NY3d 143, 152). Under the circumstances of this case, we
conclude that a challenge to the fitness of the sworn juror in
question would not have been successful.

     Defendant’s reliance on People v Wlasiuk (90 AD3d 1405) in
support of his ineffective assistance of counsel contention is
misplaced. The juror in that case, a physician, failed to disclose
during voir dire that he had been interviewed by the police during
their investigation of the case, that he worked with the victim, that
the defendant’s children were his patients and that he knew of the
defendant’s reputation for subjecting the victim, his wife, to prior
acts of violence (id. at 1408-1409). Here, in contrast, the juror in
question did not withhold any information during voir dire and did not
know anything about the case before the trial commenced. Further, the
defense attorney in Wlasiuk made an additional error that the Third
Department determined to have greatly prejudiced the defendant (id. at
1412-1413). We cannot conclude that any of defendant’s remaining
complaints concerning defense counsel’s performance have merit.

     We note that defense counsel successfully moved to suppress
defendant’s inculpatory statement to the police, in which he admitted
that he threw a brick at the victim and might have punched and kicked
him as well. Defense counsel also obtained an acquittal for defendant
on the top count of the indictment, charging him with assault in the
first degree (Penal Law § 120.10 [1]), a class B violent felony
offense that carries a mandatory minimum determinate sentence of at
least 5 years in prison and a maximum determinate sentence of 25 years
in prison (§ 70.02 [1] [a]; [3] [a]). Defendant was convicted of a
lesser included felony offense and sentenced to only five months in
jail and a term of probation. When viewed as a whole, the record
demonstrates that defense counsel provided meaningful representation
(see People v Martinez, 73 AD3d 1432, 1433, lv denied 15 NY3d 807; see
generally People v Baldi, 54 NY2d 137, 147).

     Viewing the evidence in light of the elements of the crime 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). Indeed, we
conclude that an acquittal on the lesser included offense of assault
in the second degree would have been unreasonable (see People v
Peters, 90 AD3d 1507, 1508). The victim was rendered unconscious by
the assault and was taken by ambulance to the hospital, where it was
determined that he suffered a right lateral orbital wall fracture, a
subdural hematoma and a subarachnoid hemorrhage, as well as a left
temporal bone transverse fracture. Contrary to defendant’s
contention, those injuries rise to the level of physical injury (see
Penal Law § 10.00 [9]). We further note that a witness to the assault
testified that he observed defendant strike the victim with a brick,
and the police found a brick a few feet from the victim’s head shortly
after defendant fled the scene. In any event, even assuming,
arguendo, that an acquittal on assault in the second degree would not
                                 -3-                           337
                                                         KA 11-01926

have been unreasonable, we cannot conclude that the jury failed to
give the evidence the weight it should be accorded (see People v
Smith, 46 AD3d 1458, 1458-1459, lv denied 10 NY3d 817; see generally
Bleakley, 69 NY2d at 495).

     Finally, although the prosecutor made several improper remarks
during his summation, we conclude that the potential prejudice arising
from those remarks was alleviated by the court’s curative instruction
(see People v Perrington, 89 AD3d 529, 530; People v Moore, 32 AD3d
1354, 1354, lv denied 8 NY3d 847, 9 NY3d 848). In any event, they
were not so egregious as to deprive defendant of his fundamental right
to a fair trial (see People v Hatten, 28 AD3d 1247, 1248, lv denied 7
NY3d 813).




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
