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

1402
KA 13-00520
PRESENT: SMITH, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                    V                             MEMORANDUM AND ORDER

MICHAEL T. REITZ, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered January 4, 2013. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree (two
counts), assault in the first degree (two counts) and endangering the
welfare of a child (three counts).

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, two counts each of burglary in the first
degree (Penal Law § 140.30 [2], [3]) and assault in the first degree
(§ 120.10 [1], [2]), defendant contends that he was denied the
effective assistance of counsel. We reject that contention. Although
we agree with defendant that defense counsel should not have
questioned him about a prior conviction after County Court’s Sandoval
ruling precluded the People from doing so, we conclude that defense
counsel’s error was “not so egregious and prejudicial that [it]
deprived defendant of his right to a fair trial” (People v Morrison,
48 AD3d 1044, 1045, lv denied 10 NY3d 867; see People v Hobot, 84 NY2d
1021, 1024; cf. People v Webb, 90 AD3d 1563, 1564, amended on rearg 92
AD3d 1268).

     We likewise reject defendant’s contention that his conviction of
assault in the first degree under Penal Law § 120.10 (1) and (2) is
not supported by legally sufficient evidence of serious physical
injury and serious disfigurement, respectively. With respect to
section 120.10 (1), “[t]he element of serious physical injury was
satisfied by evidence supporting the conclusion that the wound[]
inflicted by defendant caused serious disfigurement to [the]
victim[’s] face[]” (People v Matos, 121 AD3d 545, 546; see People v
Snyder, 100 AD3d 1367, 1368; see generally People v Stewart, 18 NY3d
831, 832). With respect to section 120.10 (2), a person is guilty of
                                 -2-                          1402
                                                         KA 13-00520

assault in the first degree if he or she “[w]ith intent to disfigure
another person seriously and permanently . . . causes such injury”
(id.), and “[a] person is ‘seriously’ disfigured when a reasonable
observer would find [his or] her altered appearance distressing or
objectionable” (People v McKinnon, 15 NY3d 311, 315). Here, the
evidence at trial established that the victim sustained a four-inch-
long wound to her cheek that left a permanent scar. “[V]iewed as a
whole, and especially considering the prominent location of the wound
on the face, [the evidence at trial] support[s] the inference that at
the time of trial the scar[] remained seriously disfiguring under the
McKinnon standard” (People v Coote, 110 AD3d 485, 485, lv denied 22
NY3d 1198; see Matos, 121 AD3d at 546; People v Gumbs, 107 AD3d 548,
548, lv denied 22 NY3d 1156, cert denied ___ US ___, 135 S Ct 143).

     Viewing the evidence in light of the crimes 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). “[R]esolution of issues of
credibility, as well as the weight to be accorded to the evidence
presented, are primarily questions to be determined by the jury”
(People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]), and “[i]t was within the jury’s
province to reject the testimony of defendant’s alibi witnesses”
(People v Smith, 278 AD2d 837, 837, lv denied 96 NY2d 835).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
