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

770
KA 10-00418
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NATHANIEL MYERS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

NATHANIEL MYERS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (CHRISTOPHER P.
JURUSIK OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered February 16, 2010. The judgment convicted
defendant, upon a nonjury verdict, of assault in the second degree and
criminal possession of a weapon in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a bench trial of assault in the second degree
(Penal Law § 120.05 [2]) and criminal possession of a weapon in the
third degree (§ 265.02 [1]) and, in appeal No. 2, defendant appeals
from a judgment convicting him following the same bench trial of
criminal contempt in the second degree (§ 215.50 [3]). Defendant
failed to preserve for our review his contention in appeal No. 1 that
the evidence is legally insufficient to establish that the victim, his
ex-wife, sustained a physical injury to support the conviction of
assault (see People v Gray, 86 NY2d 10, 19). In any event, that
contention is without merit. A person is guilty of assault in the
second degree when, “[w]ith intent to cause physical injury to another
person, he [or she] causes such injury to such person . . . by means
of a deadly weapon or dangerous instrument” (§ 120.05 [2]). Physical
injury is defined as “impairment of physical condition or substantial
pain” (§ 10.00 [9]). Here, the evidence presented at trial
established that defendant struck the victim in the head with a glass
liquor bottle, knocking her to the ground. The victim was bleeding
from the wound and was taken to the hospital, where she received pain
medication, a hematoma on her head was drained, and she received
stitches. The victim described the pain after it occurred as “more
                                 -2-                           770
                                                         KA 10-00418

than ten” on a scale of 1 to 10. She was prescribed a narcotic drug
for pain relief, and she testified that she continued to have pain in
the days that followed. She returned to the hospital five more times
for further treatment of her wound, and the wound has left a scar.
Viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we conclude that there is a valid
line of reasoning and permissible inferences that could lead a
rational trier of fact to find beyond a reasonable doubt that the
victim sustained a physical injury (see People v Rojas, 61 NY2d 726;
People v Krotoszynski, 43 AD3d 450, 452-453, lv denied 9 NY3d 962;
People v Holmes, 9 AD3d 689, 690-691, lv denied 3 NY3d 675).

     Also with respect to appeal No. 1, viewing the evidence in light
of the elements of the crimes of assault in the second degree and
criminal possession of a weapon in the third degree in this bench
trial (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence with respect to
those crimes (see generally People v Bleakley, 69 NY2d 490, 495).
Contrary to defendant’s contention, the testimony of the two main
prosecution witnesses “was not incredible as a matter of law inasmuch
as it was not impossible of belief, i.e., it was not manifestly
untrue, physically impossible, contrary to experience, or self-
contradictory” (People v Harris, 56 AD3d 1267, 1268, lv denied 11 NY3d
925; see People v Thomas, 272 AD2d 892, 893, lv denied 95 NY2d 858).

     Defendant further contends with respect to appeal Nos. 1 and 2
that County Court erred in admitting in evidence three letters
allegedly written by defendant to the victim and a recorded telephone
conversation between defendant and the victim. We reject that
contention. With respect to the letters, “[c]ircumstantial evidence
may satisfy the requirement that a writing be authenticated before it
may be introduced” (People v Murray, 122 AD2d 81, 82, lv denied 68
NY2d 916; see People v Manganaro, 218 NY 9, 13; Thomas, 272 AD2d at
893). Although the victim testified that the letters were not in
defendant’s handwriting, the People established a sufficient
foundation to admit the letters in evidence (see Thomas, 272 AD2d at
893). “The letters refer to the crime [of assault] and the
circumstances of the prosecution in terms that justify the inference
that defendant wrote them” (id.; see People v Bryant, 12 AD3d 1077,
1079, lv denied 4 NY3d 761). In addition, the victim testified that
she knew that defendant was the author of the letters based on certain
information in the letters, including the nicknames of both the victim
and defendant (see Bryant, 12 AD3d at 1079; Murray, 122 AD2d at 82).
With respect to the recorded telephone conversation between defendant
and the victim while defendant was incarcerated, the People
established a sufficient foundation for its admission in evidence (see
People v Williams, 55 AD3d 1398, lv denied 11 NY3d 901; see generally
People v Ely, 68 NY2d 520, 527-528). The victim identified the voice
on the tape as defendant’s voice, and she recalled the conversation.
In addition, the deputy in charge of maintaining the recording system
at the jail described the procedure for recording telephone
conversations and testified that the recording had not been altered in
any way. The People thus established “ ‘that the offered evidence
[was] genuine and that there [had] been no tampering with it’ ”
                                 -3-                          770
                                                        KA 10-00418

(Ely, 68 NY2d at 527; see People v Manor, 38 AD3d 1257, 1258, lv
denied 9 NY3d 847).

     Defendant contends with respect to both appeals that he was
denied effective assistance of counsel. We reject that contention.
Insofar as he contends that defense counsel was ineffective in failing
to seek a missing witness charge, we note that defendant failed to
establish the absence of a legitimate explanation for defense
counsel’s failure to do so (see People v Benevento, 91 NY2d 708, 712-
713; People v Maryon, 20 AD3d 911, 913, lv denied 5 NY3d 854).
Indeed, “[a]bsent proof that such witness would have provided
noncumulative testimony which was favorable to [the prosecution],
there was no basis for such a charge” (People v Thomas, 299 AD2d 942,
943, lv denied 99 NY2d 620 [internal quotation marks omitted]; see
generally People v Savinon, 100 NY2d 192, 197). Furthermore, contrary
to defendant’s contention, the fact that defense counsel made a
general rather than a specific motion for a trial order of dismissal
is of no moment where, as here, a specific motion would have had
little or no chance of success (see People v Hunter, 70 AD3d 1388,
1389, lv denied 15 NY3d 751; see generally People v Caban, 5 NY3d 143,
152). Viewing the evidence, the law and the circumstances of this
case, in totality and as of the time of the representation, we
conclude that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).

     Finally, in his pro se supplemental brief defendant contends with
respect to both appeals that the court violated Crawford v Washington
(541 US 36) when it admitted in evidence at trial various documents
and photographs, i.e., medical records of the victim, orders of
protection, defendant’s prior certificate of conviction, and
photographs depicting the victim’s injuries. Defendant failed to
preserve his contention for our review (see CPL 470.05 [2]), and it is
without merit in any event. Defendant has not identified any
testimonial statements in the victim’s medical records that he
contends were admitted in violation of Crawford. Inasmuch as the
victim testified and was available for cross-examination, any
statements attributed to her in the medical records would not violate
defendant’s right of confrontation under the Sixth Amendment to the
United States Constitution. In addition, the orders of protection
were not testimonial in nature (see People v Lino, 65 AD3d 1263, 1264,
lv denied 13 NY3d 940), and defendant’s prior certificate of
conviction also was not admitted in violation of Crawford (see People
v McCallie, 37 AD3d 1129, 1130, lv denied 8 NY3d 987). Finally, the
photographs depicting the victim’s injuries are demonstrative rather
than testimonial evidence (see generally Crawford, 541 US at 51-53).




Entered:   August 19, 2011                     Patricia L. Morgan
                                               Clerk of the Court
