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

1377
KA 11-02137
PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

RONALD COLEMAN, JR., ALSO KNOWN AS RONALD COLEMAN,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RONALD COLEMAN, JR., DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered August 31, 2011. The judgment convicted
defendant, upon a jury verdict, of kidnapping in the first degree,
robbery in the first degree (two counts), criminal possession of a
weapon in the second degree (two counts), robbery in the second degree
and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of assault in the second degree and dismissing count eight
of the indictment and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of kidnapping in the first degree (Penal Law
§ 135.25 [1]), robbery in the second degree (§ 160.10 [1]), and
assault in the second degree (§ 120.05 [2]), and two counts each of
robbery in the first degree (§ 160.15 [2], [4]) and criminal
possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]).
We agree with defendant that the evidence is legally insufficient to
support his conviction of assault in the second degree because there
is insufficient evidence that the victim sustained a physical injury,
i.e., “impairment of physical condition or substantial pain”
(§ 10.00 [9]; see § 120.05 [2]). Although the evidence at trial
established that, after defendant hit the victim in the face with a
gun, the victim sustained a small bruise with some swelling beneath
the eye and felt some pain, the victim also testified that he did not
seek medical attention, and there was no testimony about the extent or
duration of the victim’s pain or whether the injury curtailed the
victim’s activities (see People v Perry, 122 AD3d 775, 775-776, lv
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                                                         KA 11-02137

denied 24 NY3d 1122; People v Zalevsky, 82 AD3d 1136, 1137, lv denied
19 NY3d 978, reconsideration denied 19 NY3d 1106; see generally People
v Haynes, 104 AD3d 1142, 1142-1143, lv denied 22 NY3d 1156; cf. People
v Myers, 87 AD3d 826, 827, lv denied 17 NY3d 954). We therefore
modify the judgment accordingly.

     With respect to the remaining counts of which defendant was
convicted, we conclude that the evidence is legally sufficient to
support the conviction (see generally People v Bleakley, 69 NY2d 490,
495). Additionally, 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 reject defendant’s contention, also raised in his
pro se supplemental brief, that the verdict is against the weight of
the evidence (see generally Bleakley, 69 NY2d at 495). Also contrary
to defendant’s contention, the photo array used in the pretrial
identification procedure was not unduly suggestive inasmuch as “the
fact that he was photographed from a closer range did not
impermissibly draw attention to his photograph in the array” (People v
Brown, 125 AD3d 1550, 1550; see People v Ofield, 280 AD2d 978, 979, lv
denied 96 NY2d 832). Defendant further contends that we should modify
the judgment as a matter of discretion in the interest of justice by
reversing one of his convictions of robbery in the first degree
because both counts involved the forcible theft of the same property,
and by reversing one of his convictions of criminal possession of a
weapon in the second degree because both counts involved the
possession of the same weapon. We decline to do so inasmuch as each
count of which defendant was convicted was a separate crime (see
People v Rice, 5 AD3d 1074, 1074, lv denied 2 NY3d 805).

     Defendant failed to preserve for our review his contentions that
County Court erred in its Sandoval ruling (see People v Tolliver, 93
AD3d 1150, 1151, lv denied 19 NY3d 968), and that the indictment is
multiplicitous (see People v Jefferson, 125 AD3d 1463, 1464, lv denied
25 NY3d 990; People v Quinn, 103 AD3d 1258, 1258, lv denied 21 NY3d
946). Defendant also failed to preserve for our review his contention
in his pro se supplemental brief that the court erred in its charge to
the jury (see People v Humphrey, 109 AD3d 1173, 1174, lv denied 24
NY3d 1044), as well as his contention therein that the verdict is
repugnant (see People v Spears, 125 AD3d 1401, 1402, lv denied 25 NY3d
1172). We decline to exercise our power to review those contentions
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]).

     Defendant’s remaining contentions are set forth in his pro se
supplemental brief. His contention that the court erred in refusing
to suppress statements that he made to the police is moot because the
prosecution did not introduce those statements at trial (see People v
Wegman, 2 AD3d 1333, 1335, lv denied 2 NY3d 747). We reject
defendant’s contention that defense counsel’s failure to make a motion
pursuant to CPL 190.50 (5) (c) deprived him of effective assistance of
counsel. Defendant “has not established that ‘he was prejudiced by
the failure of [defense counsel] to effectuate his appearance before
the grand jury’ or that, ‘had he testified in the grand jury, the
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                                                        KA 11-02137

outcome would have been different’ ” (People v James, 92 AD3d 1207,
1208, lv denied 19 NY3d 962, quoting People v Simmons, 10 NY3d 946,
949; see People v Dixon, 37 AD3d 1124, 1124-1125, lv denied 10 NY3d
764). Finally, we have examined defendant’s remaining contention in
his pro se supplemental brief and conclude that it lacks merit.




Entered:   December 31, 2015                   Frances E. Cafarell
                                               Clerk of the Court
