                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 18, 2016                     106477
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

ANDREW JONES,
                    Appellant.
________________________________


Calendar Date:     January 8, 2016

Before:     Peters, P.J., Garry, Egan Jr. and Clark, JJ.

                               __________


         Bruce Evans Knoll, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                               __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Albany County
(Ryan, J.), rendered July 18, 2001, upon a verdict convicting
defendant of the crime of assault in the second degree.

      During the early morning hours of October 6, 2000,
defendant1 and two of his friends – Julio Vazquez and Wayne


     1
        Although defendant was indicted as Andrew Jones, the
People subsequently discovered that defendant's true name was
Andrew James. At trial, County Court granted the People's oral
motion to amend the indictment, but various posttrial materials
in the record on appeal, including correspondence from the
Department of Corrections and Community Supervision, nonetheless
                              -2-                106477

Holmes – were patrons at a bar in the City of Albany. While
there, defendant paid a dancer $20 for a lap dance. Apparently
dissatisfied with the dancer's performance, defendant began to
quarrel with her, prompting the establishment's owner, Daniel
Cadalso, to intervene. Although Cadalso issued defendant a
refund, defendant remained irate, stating that "he was going to
shoot the place up" and generally "making a huge scene in front
of the whole bar." Cadalso enlisted the assistance of Vazquez in
an effort to remove defendant from the premises, but Vazquez
assured Cadalso that everything was under control; defendant, who
had just ordered a drink from the bar, was not inclined to leave.

      Cadalso then went to speak with Christopher Disonell, who
was working the door at the club, and apprised him of the
situation. As Cadalso and Disonnell were speaking, defendant
approached and launched into another verbal tirade, during the
course of which Holmes charged Cadalso and pinned him against the
wall while Vazquez blocked the exit. Following a brief struggle,
Cadalso broke free, ran outside and called 911. Meanwhile,
defendant approached Disonell, leaned in and said that "he was
going to stick [Disonell]." Believing that he "was going to get
stabbed," Disonell punched defendant in the face and thereafter
was struck on the right side of his face with a beer bottle
wielded by Holmes. Immediately thereafter, defendant struck
Disonell on the left side of his face with "[a] mixed drink
glass." Both the beer bottle and the drink glass broke upon
impact, cutting Disonell's face and sending blood "all over the
place." Disonell then went to the bathroom and attempted to stop
the bleeding. Cadalso, who still was outside on the phone with
the police, saw defendant, Holmes and Vazquez exit the club and
climb into "a big, white, flatbed towing vehicle."

      When Cadalso reentered the establishment, he observed
"[b]roken glass, broken chairs and a lot of blood." Cadalso then


refer to defendant as Andrew Jones. For that reason, we have
captioned this matter in accordance with defendant's name as it
appeared on the underlying indictment. There is, however, no
question that defendant and Andrew James are one and the same
person.
                               -3-                106477

went in search of Disonell, whom he found – "cut pretty bad" – in
the bathroom holding a towel to his face. According to Cadalso,
Disonell had "[d]eep – very deep, wide-open lacerations in both
his cheeks and a big, deep cut . . . on the bridge of his nose"
and "was really, really bleeding profusely." Cadalso drove
Disonell to a local hospital,2 following which Cadalso returned
to the scene and identified defendant, Holmes and Vazquez as the
individuals involved in the disturbance at the club. Defendant
and Holmes then were placed under arrest.

      As a result of this incident, defendant was indicted and
charged in December 2000 with assault in the second degree.3
Following a jury trial in April 2001, defendant was found guilty
as charged and thereafter was sentenced, as a second felony
offender, to seven years in prison followed by five years of
postrelease supervision. This appeal by defendant ensued.4


     2
        A member of the Albany Police Department, who saw
Disonell at the hospital, offered a similar assessment of
Disonell's injuries, stating, "He was sliced up very badly. Both
sides of his nose had pretty big gashes and into his cheek area."
     3
        According to the People, Holmes separately pleaded guilty
to assault in the second degree for his role in the attack.
     4
        Although defendant filed a notice of appeal in July 2001,
defendant, for reasons that are not apparent from the record, did
not perfect his appeal in this Court until June 2015. The People
did not move to dismiss the appeal in the interim, and this
Court's rule regarding the abandonment of criminal appeals (see
22 NYCRR 800.14 [j]) did not go into effect until July 28, 2014 –
after the point in time when this Court, among other things,
granted defendant's motion for permission to proceed as a poor
person and for the assignment of counsel. As for the underlying
delay, defense counsel acknowledged at oral argument that, while
this appeal was pending, defendant was convicted of murder in the
second degree – for which he is serving a lengthy term of
imprisonment – and suggested that the delay in pursuing the
instant appeal was attributable to that intervening criminal
matter.
                              -4-                106477

      Defendant first asserts that he was deprived of a fair
trial due to the People's intermingling of the proof relative to
Holmes' and defendant's respective actions on the morning in
question. Specifically, defendant contends that the People
failed to sufficiently differentiate between the injuries to the
right and left sides of Disonell's face, thereby raising the
possibility that defendant was indicted for – and ultimately was
convicted of – a crime that he did not actually commit. We
disagree. The grand jury minutes, as well as the trial
transcript – from the opening statements, to the testimony
offered by Cadalso and Disonell, to the People's closing argument
– reflect that the People drew a clear distinction between both
the injuries that Disonell received to the right and the left
sides of his face and the individuals who caused such injuries.
Accordingly, we are satisfied that defendant was "tried and
convicted of only those crimes and upon only those theories
charged in the indictment" (People v Wilson, 61 AD3d 1269, 1271
[2009] [internal quotation marks and citations omitted], lv
denied 14 NY3d 774 [2010]).

      Although defendant's present challenge to the legal
sufficiency of the evidence is unpreserved for our review, "our
weight of the evidence review necessarily involves an evaluation
of whether all elements of the charged crime were proven beyond a
reasonable doubt at trial" (People v Burch, 97 AD3d 987, 989 n 2
[2012] [internal quotation marks and citations omitted], lv
denied 19 NY3d 1101 [2012]). In this regard, "[a] person is
guilty of assault in the second degree when . . . [h]e [or she]
recklessly causes serious physical injury to another person by
means of a deadly weapon or a dangerous instrument" (Penal Law
§ 120.05 [4]; see People v Heier, 90 AD3d 1336, 1337 [2011], lv
denied 18 NY3d 994 [2012]). "Serious physical injury" includes,
insofar as is relevant here, "serious and protracted
disfigurement" (Penal Law § 10.00 [10]), and a "[d]angerous
instrument" is defined as "any instrument, article or substance,
. . . which, under the circumstances in which it is used,
attempted to be used or threatened to be used, is readily capable
of causing death or other serious physical injury" (Penal Law
§ 10.00 [13]; see People v Griffith, 254 AD2d 753, 753-754 [1998]
[10-ounce bar glass qualifies as a dangerous instrument]).
Finally, a person acts "recklessly" when he or she "is aware of
                              -5-                106477

and consciously disregards a substantial and unjustifiable risk
that [a] result will occur" (Penal Law § 15.05 [3]; see People v
Gallo, 133 AD3d 1088, 1089 [2015]). Specifically, the risk at
issue "must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation" (Penal Law
§ 15.05 [3]; accord People v Briskin, 125 AD3d 1113, 1119 [2015],
lv denied 25 NY3d 1069 [2015]).

      Here, defendant primarily disputes the proof adduced with
respect to the "serious physical injury" element of the charged
crime. Specifically, defendant contends that the record as a
whole does not establish that Disonell suffered "serious and
protracted disfigurement" as the result of defendant's actions in
cutting the left side of Disonell's face with the drink glass.
We disagree. Disonell testified – without contradiction – that
he had "plastic surgery" and received 150 stitches to close his
facial wounds. Disonell further testified that he was on
prescription pain medication for approximately one week following
the attack and that he missed three or four weeks of work as a
result thereof. Additionally, a photograph taken shortly after
the assault and admitted into evidence at trial clearly depicts a
significant wound to the left side of Disonell's face, and
Disonell testified at trial (some six months after the incident
occurred) that he had facial scarring as a result of the assault
– specifically, a scar on the left side of his face that was a
"[f]ew inches" long. Finally, the record reflects that Disonell
separately displayed the scars on each side of his face to the
jury. Although Disonell's medical records admittedly did not
shed much light on the extent of his injuries, we nonetheless are
satisfied that the jury's verdict was in accord with the weight
of the evidence.

      To the extent that defendant argues that County Court
failed to define "serious and protracted disfigurement" for the
jury, we need note only that defendant neither objected to the
charge as given nor requested additional or different language.
Accordingly, this issue is unpreserved for our review (see People
v Davis, 133 AD3d 911, 914 [2015]). In any event, County Court
can hardly be faulted for failing to provide the jury with the
definition of "serious and protracted disfigurement" set forth in
                               -6-                106477

People v McKinnon (15 NY3d 311 [2010]) when the Court of Appeals
did not craft that definition until more than nine years after
defendant's jury trial. Defendant's remaining arguments relative
to the jury charge and resulting verdict – including his
assertion that County Court erred in refusing to charge the
lesser included offense of assault in the third degree and that
the jury improperly rejected his justification defense – have
been examined and found to be lacking in merit.

      That said, we do find merit to defendant's claim that
County Court erred in denying his Batson challenge with respect
to prospective juror No. 2 and, therefore, we reverse the
judgment and remit this matter for a new trial. As a threshold
matter, we reject the People's assertion that defendant failed to
preserve this issue for our review. "[A] Batson claim can be
raised at any time during the jury selection process" (People v
Perez, 37 AD3d 152, 154 [2007]; see Matter of Robar v LaBuda, 84
AD3d 129, 138 n 6 [2011]). More to the point, the People's
present assertion – that defendant failed to specifically object
to the prosecutor's refusal to provide a race-neutral explanation
for the exclusion of prospective juror No. 2 – "is inconsistent
with the process by which a Batson analysis is made . . .; it is
defendant's objections that give rise to the prosecutor's
obligation to state race-neutral reasons for the disputed
challenges in the first place" (People v Davis, 253 AD2d 634, 635
[1998]).5

      As to the merits, where a Batson challenge is raised (see
Batson v Kentucky, 476 US 79 [1986]), the trial court must engage
in a three-step process. "At step one, the moving party bears
the burden of establishing a prima facie case of discrimination
in the exercise of peremptory challenges. Once a prima facie
case of discrimination has been established, the burden shifts,
at step two, to the nonmoving party to offer a facially neutral
explanation for each suspect challenge. At the third step, the


     5
        In any event, defense counsel did expressly note "that
there ha[d]n't been any race-neutral reason provided" with
respect to prospective juror No. 2.
                              -7-                106477

burden shifts back to the moving party to prove purposeful
discrimination and the trial court must determine whether the
proffered reasons are pretextual" (People v Hecker, 15 NY3d 625,
634-635 [2010] [internal quotation marks and citations omitted];
see People v Grafton, 132 AD3d 1065, 1066 [2015]).

      Here, the record reflects that the People sought to
exercise peremptory challenges to exclude four of the five
nonwhite individuals comprising the second panel of prospective
trial jurors. Indeed, as defense counsel noted, "The only
[nonwhite juror] who was not excluded [from this panel] was the
daughter-in-law of the former Chief of Police of the Albany
Police Department." In response to defense counsel's Batson
challenge, County Court asked the People – "based upon the
peremptory challenges" asserted – to "give a race-neutral reason
. . . for th[o]se selections," thereby implicitly finding that
defendant had made a prima facie showing of discrimination. The
People provided such an explanation as to prospective juror Nos.
4, 6 and 17 but refused to offer a race-neutral explanation as to
prospective juror No. 2, noting that this juror was the first
nonwhite juror that they had sought to exclude by use of a
peremptory challenge. As the prosecuting attorney succinctly put
it, "I shouldn't be made to give a reason for the first one."
Defense counsel took issue with the People's lack of a race-
neutral explanation for the exclusion of this juror, noting that
"the fact that [prospective juror No. 2] was the first person of
color [to be] excluded [was] . . . merely fortuitous." County
Court rejected defendant's argument on this point and allowed the
People to exercise a peremptory challenge to exclude prospective
juror No. 2, as well as prospective juror Nos. 4 and 6.

      The foregoing stance – that the People were not required to
provide a race-neutral explanation for seeking to exclude
prospective juror No. 2 because she was the first person of color
upon whom the People sought to exercise a peremptory challenge –
is simply wrong. "The purpose of the Batson rule is to eliminate
discrimination, not minimize it" (People v Bolling, 79 NY2d 317,
321 [1992]). Accordingly, because "[t]he exclusion of any
[nonwhite prospective jurors] solely because of their race is
constitutionally forbidden" (id. at 321 [internal quotation marks
and citation omitted]), a defendant asserting a Batson challenge
                              -8-                  106477

need not show a pattern of discrimination. "Although as part of
their prima facie case parties often rely on numbers to show a
pattern of strikes against a particular group of jurors, a prima
facie case may be made based on the peremptory challenge of a
single juror that gives rise to an inference of discrimination"
(People v Smocum, 99 NY2d 418, 421-422 [2003]; see People v
Morgan, 75 AD3d 1050, 1053 [2010], lv denied 15 NY3d 894 [2010]).

      Here, County Court implicitly concluded that defendant had
made a prima facie showing of discrimination as to all four of
the jurors in question, and the burden then shifted to the People
to provide race-neutral explanations for all four — not just
three — of the nonwhite prospective jurors against whom the
People asserted peremptory challenges. Given the People's
failure to provide – and County Court's failure to require – such
an explanation as to all four prospective jurors, defendant is
entitled to a new trial.

     Peters, P.J., Garry and Clark, JJ., concur.



      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Albany County for a new
trial.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
