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

1144
KA 15-01405
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL GERMAN, DEFENDANT-APPELLANT.


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN T. LEEDS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered June 25, 2015. The judgment convicted defendant,
upon a jury verdict, of assault in the second degree (two counts).

     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 two counts of assault in the second degree
(Penal Law § 120.05 [3]). We conclude that the evidence, viewed in
the light most favorable to the People, is legally sufficient to
support the conviction. We note that a “peace officer” is defined to
include a “correction officer[] of any state correctional facility”
(CPL 2.10 [25]; see Penal Law § 120.05 [3]). We further conclude that
the evidence demonstrates that the victims each sustained a “physical
injury,” defined as “impairment of physical condition or substantial
pain” (Penal Law § 10.00 [9]; see § 120.05 [3]; see also People v
Chiddick, 8 NY3d 445, 447-448). Moreover, 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).

     Defendant failed to preserve for our review his contention that
he was deprived of due process as a result of being shackled within
the view of the jurors beginning on the second day of trial (see
People v Goossens, 92 AD3d 1281, 1282, lv denied 19 NY3d 960).
Defendant likewise has failed to preserve for our review his
contention that County Court erred in failing to give a curative
instruction regarding defendant’s wearing of shackles (see CPL 470.05
[2]; People v Harris, 303 AD2d 1026, 1026-1027, lv denied 100 NY2d
594). We decline to exercise our power to review those contentions as
a matter of our discretion in the interest of justice (see CPL 470.15
                                 -2-                          1144
                                                         KA 15-01405

[6] [a]).

     Finally, defendant’s contention that he was wrongfully excluded
from a material stage of trial, i.e., sidebar conferences among the
court and the attorneys at which defendant’s presence might have had a
substantial effect on his ability to defend against the charges (see
People v Sloan, 79 NY2d 386, 392-393), “is not reviewable because he
failed to provide ‘an adequate record for appellate review’ ” (People
v Lockett, 1 AD3d 932, 932, lv denied 1 NY3d 630, quoting People v
Velasquez, 1 NY3d 44, 48; see People v Camacho, 90 NY2d 558, 560).




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