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

46
KA 11-00490
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HERBERT H. HAYNES, JR., DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered March 30, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree (three
counts), assault in the second degree (two counts), harassment in the
second degree (two counts) and criminal mischief in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the conviction of burglary
in the first degree (Penal Law § 140.30 [2]) under count two of the
indictment to burglary in the second degree (§ 140.25 [2]), reducing
the conviction of assault in the second degree (§ 120.05 [2]) under
count four of the indictment to attempted assault in the second degree
(§§ 110.00, 120.05 [2]), and vacating the sentences imposed on those
counts, and as modified the judgment is affirmed and the matter is
remitted to Ontario County Court for sentencing on the conviction of
burglary in the second degree and attempted assault in the second
degree.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, burglary in the first degree
(Penal Law § 140.30 [2], [3]) and assault in the second degree (§
120.05 [2]). We agree with defendant that the evidence is legally
insufficient to support his conviction of burglary in the first degree
as charged in count two of the indictment and assault in the second
degree as charged in count four of the indictment because there is
insufficient evidence that the victim sustained a physical injury (see
§§ 120.05 [2]; 140.30 [2]), i.e., “impairment of physical condition or
substantial pain” (§ 10.00 [9]). Although “ ‘substantial pain’ cannot
be defined precisely, . . . it can be said that it is more than slight
or trivial pain” (People v Chiddick, 8 NY3d 445, 447). “ ‘[P]etty
slaps, shoves, kicks and the like delivered out of hostility, meanness
and similar motives’ constitute only harassment and not assault,
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                                                         KA 11-00490

because they do not inflict physical injury” (id. at 448; see Matter
of Philip A., 49 NY2d 198, 200). Factors relevant to an assessment of
substantial pain include the nature of the injury, viewed objectively,
the victim’s subjective description of the injury and his or her pain,
whether the victim sought medical treatment, and the motive of the
offender (see Chiddick, 8 NY3d at 447-448; People v Spratley, 96 AD3d
1420, 1421). “Motive is relevant because an offender more interested
in displaying hostility than in inflicting pain will often not inflict
much of it” (Chiddick, 8 NY3d at 448).

     Here, the victim and other witnesses testified that one of
defendant’s companions struck the victim in the arm, neck and head
with a baseball bat. The victim testified that he sustained a bruise
on his arm, which did “[n]ot [last] at all.” No bruise is apparent in
the photograph of the victim’s arm taken shortly after the incident.
The victim also testified that his neck was bruised in the attack,
although that bruise is likewise not visible in the photograph
contained in the record. Finally, the victim identified a photograph
of his head and testified that he sustained “a lump, but you can’t
really see it.” After the incident, the victim went to the hospital
with his brother and a friend who were also attacked. According to
the victim, medical personnel “looked at [him], but it wasn’t
serious.” Although we agree with the People that an attack with a
baseball bat is “an experience that would normally be expected to
bring with it more than a little pain” (id. at 447; see People v
Henderson, 77 AD3d 1311, 1311, lv denied 17 NY3d 953), here the victim
testified that his injuries hurt only “[a] little bit,” and that the
pain lasted “a couple of days, no longer than a week.” Further, it is
undisputed that the victim was not the main target of the attack, but
rather was an unfortunate bystander (see generally Chiddick, 8 NY3d at
447-448). We thus conclude that the evidence adduced at trial is
legally insufficient to establish that the victim sustained a physical
injury, i.e., physical impairment or substantial pain (see Matter of
Shawn D.R.-S., 94 AD3d 1541, 1541-1542; People v Lunetta, 38 AD3d
1303, 1304-1305, lv denied 8 NY3d 987; People v Patterson, 192 AD2d
1083, 1083; cf. Matter of Nico S.C., 70 AD3d 1474, 1475; People v
Smith, 45 AD3d 1483, 1483, lv denied 10 NY3d 771; People v Wooden, 275
AD2d 935, 936, lv denied 96 NY2d 740). We further conclude, however,
that the evidence is legally sufficient to support a conviction of the
lesser included offenses of burglary in the second degree (Penal Law §
140.25 [2]) and attempted assault in the second degree (§§ 110.00,
120.05 [2]), and we therefore modify the judgment accordingly.
Contrary to the further contention of defendant, viewing the evidence
in light of the elements of the remaining crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict with respect to those crimes is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant further contends that he was deprived of a fair trial
by prosecutorial misconduct during voir dire and throughout the trial.
“By failing to object to most of the statements by the prosecutor that
are now alleged to constitute misconduct, defendant failed to preserve
for our review his contentions with respect to those statements”
(People v Hess, 234 AD2d 925, 925, lv denied 90 NY2d 1011; see CPL
                                 -3-                            46
                                                         KA 11-00490

470.05 [2]; People v Justice, 99 AD3d 1213, 1216; People v Nappi, 83
AD3d 1592, 1594, lv denied 17 NY3d 820). In any event, we conclude
that, although certain comments made by the prosecutor were improper,
those comments “were ‘not so egregious as to deprive defendant of his
right to a fair trial,’ when viewed in the totality of the
circumstances of this case” (People v Martina, 48 AD3d 1271, 1273, lv
denied 10 NY3d 961; see Justice, 99 AD3d at 1216). We further
conclude that defendant was not denied effective assistance of counsel
based on the failure of defense counsel to object to the prosecutor’s
improper comments on summation (see People v Lopez, 96 AD3d 1621,
1623, lv denied 19 NY3d 998; People v Lyon, 77 AD3d 1338, 1339, lv
denied 15 NY3d 954).

     Contrary to defendant’s contention, the sentence is not unduly
harsh or severe. As defendant correctly contends, however, the
certificate of conviction mistakenly recites that he was sentenced to
a five-year period of postrelease supervision on each conviction of
assault in the second degree when, in fact, the court imposed no
periods of postrelease supervision. The certificate of conviction
must therefore be amended to reflect that defendant was not sentenced
to any periods of postrelease supervision on the two assault
convictions (see generally People v Saxton, 32 AD3d 1286, 1286-1287).




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
