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

968
KA 14-00232
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NORRIS D. HENDRIX, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered December 12, 2013. The judgment convicted defendant,
upon a jury verdict, of assault in the second degree.

     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 assault in the second degree (Penal Law §
120.05 [3]) arising from an incident in which a correction officer at
the correctional facility where defendant was incarcerated was injured
while performing a pat frisk of defendant. Defendant contends that he
was denied a fair trial by several alleged instances of prosecutorial
misconduct, but we note that defendant failed to preserve his
contention for our review with respect to any of those instances. In
any event, we conclude that “[a]ny ‘improprieties were not so
pervasive or egregious as to deprive defendant of a fair
trial’ ” (People v Johnson, 303 AD2d 967, 968, lv denied 100 NY2d
583).

     Defendant further contends that he was denied effective
assistance of counsel by his attorney’s failure to object to the
alleged instances of prosecutorial misconduct and failure to request a
jury charge on the justified use of physical force pursuant to Penal
Law § 35.15. With respect to the alleged instances of prosecutorial
misconduct, inasmuch as they were not so egregious as to deprive
defendant of a fair trial, defense counsel’s failure to object thereto
did not deprive defendant of effective assistance of counsel (see
People v Koonce, 111 AD3d 1277, 1279). With respect to the jury
charge on justification, we conclude that defendant failed to
demonstrate the absence of a strategic or other legitimate explanation
for defense counsel’s decision not to request that charge (see
                                 -2-                           968
                                                         KA 14-00232

generally People v Benevento, 91 NY2d 708, 712). Indeed, defendant
testified that he did not use physical force against the correction
officer, and we therefore cannot conclude that defense counsel was
ineffective for failing to seek a jury charge covering force that
defendant swore he did not use.

     Finally, defendant contends that the verdict is against the
weight of the evidence because the testimony of the correction officer
regarding his injuries and the way they were sustained is incredible
as a matter of law. 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 reject that contention (see generally People v Bleakley, 69
NY2d 490, 495). The injuries sustained by the correction officer,
including a mild concussion and headaches (see People v Newman, 71
AD3d 1509, 1509-1510, lv denied 15 NY3d 754), were described in his
testimony and corroborated by the testimony of the medical providers
who treated him, as was the manner in which they were sustained, which
the jury found probative of defendant’s intent to prevent the
correction officer “from performing a lawful duty” (Penal Law § 120.05
[3]; see People v Pinero-Baez, 67 AD3d 469, 469, lv denied 13 NY3d
941). We perceive no basis to disturb the jury’s credibility
determinations with respect to that testimony.




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
