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

799
KA 14-01127
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DERRICK MANIGAULT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 24, 2014. The judgment
convicted defendant, upon a jury verdict, of assault in the first
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: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the first degree (Penal Law § 120.10
[1]) and criminal possession of a weapon in the third degree (§ 265.02
[1]). We reject defendant’s contention that his conviction of assault
in the first degree is not supported by legally sufficient evidence of
a serious physical injury, which includes a physical injury that
causes “serious and protracted disfigurement” (§ 10.00 [10]).

     “A person is ‘seriously’ disfigured when a reasonable observer
would find [the person’s] altered appearance distressing or
objectionable” (People v McKinnon, 15 NY3d 311, 315), and “the injury
must be viewed in context, considering its location on the body and
any relevant aspects of the victim’s overall physical appearance”
(id.). Here, the evidence at trial established that defendant used a
box cutter to cut the victim’s face and chest, resulting in a facial
wound that required five deep sutures and 20 superficial sutures to
close. The victim testified at trial and lifted his shirt to show the
jury a chest scar that was 12 centimeters in length. The jury was
also shown photographs taken approximately one month after the
incident that depicted scars on the victim’s face and chest, and the
victim testified that, despite some healing, at the time of the trial
the scars were the same length and width and equally as visible as
depicted in the photographs. Thus, the evidence established that the
victim sustained a permanent scar on his chest and a permanent facial
                                 -2-                           799
                                                         KA 14-01127

scar that was slightly over three inches in length and was prominently
located on his cheek. Viewing the evidence in the light most
favorable to the People (see People v Danielson, 9 NY3d 342, 349), we
conclude that the evidence is legally sufficient with respect to the
element of serious physical injury to support the conviction of
assault in the first degree (see People v Robinson, 121 AD3d 1405,
1407, lv denied 24 NY3d 1221; see also People v Reitz, 125 AD3d 1425,
1425-1426, lv denied 26 NY3d 934, reconsideration denied 26 NY3d 1091;
People v Irwin, 5 AD3d 1122, 1122, lv denied 3 NY3d 642).

     We reject defendant’s contention that the verdict is against the
weight of the evidence with respect to assault in the first degree.
In particular, defendant contends that the People failed to prove that
he intended to cause a serious physical injury inasmuch as the
evidence established that the victim’s lacerations were inflicted by
accident. It is well settled that a defendant may be presumed to
intend the natural and probable consequences of his actions (see
People v Roman, 13 AD3d 1115, 1116, lv denied 4 NY3d 802), and that
the element of intent may be inferred from the totality of defendant’s
conduct (see People v Mike, 283 AD2d 989, 989, lv denied 96 NY2d 904).
Here, the People presented evidence establishing that defendant
attacked the unarmed victim with a box cutter during a fist fight, and
thereby established that defendant intended to cause serious physical
injury to the victim (see People v Marzug, 280 AD2d 974, 974, lv
denied 96 NY2d 904). Contrary to defendant’s further contention, the
People disproved the defense of justification beyond a reasonable
doubt (see People v Gaines, 26 AD3d 269, 270, lv denied 6 NY3d 847).
Thus, viewing the evidence in light of the elements of assault in the
first degree as charged to the jury (see Danielson, 9 NY3d at 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant further contends that he was denied a fair trial by
prosecutorial misconduct. Initially, we note that defendant failed to
preserve for our review his contentions that the prosecutor committed
misconduct during summation by improperly shifting the burden of proof
and denigrating the defense (see People v Smith, 32 AD3d 1291, 1292,
lv denied 8 NY3d 849). In any event, we conclude that the challenged
remarks were “fair comment upon the evidence” (People v Mulligan, 118
AD3d 1372, 1375, lv denied 25 NY3d 1075), did not exceed the broad
bounds of rhetorical comment permissible in summation, and constituted
a fair response to defense counsel’s summation (see People v Love, 134
AD3d 1569, 1570, lv denied 27 NY3d 967). We reject defendant’s
contention that he was denied a fair trial by the remaining instances
of prosecutorial misconduct. Specifically, the prosecutor on
summation did not misstate the law with respect to justification, and
we note that Supreme Court instructed the jury that it should accept
the law as charged by the court (see People v Lopez, 96 AD3d 1621,
1623, lv denied 19 NY3d 998). Although we agree with defendant that
the prosecutor’s characterization of defendant’s testimony as a
“manufactured story” was improper (see People v Morgan, 111 AD3d 1254,
1255; People v Seeler, 63 AD3d 1595, 1596, lv denied 13 NY3d 838), we
conclude that this single instance of misconduct, which was undermined
                                 -3-                           799
                                                         KA 14-01127

by a successful defense objection, did not cause defendant such
substantial prejudice that he was denied a fair trial (see People v
Manigat, 136 AD3d 614, 616, lv denied 27 NY3d 1135; cf. People v
Griffin, 125 AD3d 1509, 1512).

     Defendant also failed to preserve for our review his contention
that he was not properly sentenced as a second felony offender because
the People failed to comply with the procedural requirements of CPL
400.21 (see People v Butler, 96 AD3d 1367, 1368, lv denied 20 NY3d
931). In any event, that contention is without merit. Defense
counsel admitted that defendant had a prior felony conviction (see
People v Califano, 84 AD3d 1504, 1506-1507, lv denied 17 NY3d 805),
and the record establishes that defendant had an opportunity to
controvert the allegations in the second felony offender statement but
did not do so (see People v Brown, 140 AD3d 1740, 1741; People v
Hughes, 28 AD3d 1185, 1185, lv denied 7 NY3d 790). We therefore
conclude that, “under the circumstances presented here, . . . there
was the requisite substantial compliance with CPL 400.21” (People v
Irvin, 111 AD3d 1294, 1297, lv denied 24 NY3d 1044, reconsideration
denied 26 NY3d 930; see generally People v Bouyea, 64 NY2d 1140,
1142).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
