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

1253
KA 15-00420
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

WILLIE D. SMITH, III, DEFENDANT-APPELLANT.


THE LAW OFFICE OF GUY A. TALIA, ROCHESTER (GUY A. TALIA OF COUNSEL),
FOR DEFENDANT-APPELLANT.

KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (SEAN R. STERLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered September 12, 2014. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree,
assault in the second degree, reckless endangerment in the first
degree and endangering the welfare of a child.

     It is hereby ORDERED that the   judgment so appealed from is
unanimously modified on the law by   reversing that part convicting
defendant of reckless endangerment   in the first degree and dismissing
count three of the indictment, and   as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the first degree (Penal Law § 120.10
[3]), assault in the second degree (§ 120.05 [9]), reckless
endangerment in the first degree (§ 120.25), and endangering the
welfare of a child (§ 260.10 [1]). As the People correctly concede,
“[r]eckless endangerment in the first degree . . . is a lesser
included offense of assault in the first degree” (People v Cotton, 214
AD2d 994, 994, lv denied 86 NY2d 733; see People v Glanda, 18 AD3d
956, 959, lv denied 6 NY3d 754, reconsideration denied 6 NY3d 848).
We therefore modify the judgment by reversing that part convicting
defendant of reckless endangerment in the first degree and by
dismissing count three of the indictment.

     By failing to renew his motion for a trial order of dismissal
after presenting evidence, defendant failed to preserve for our review
his contention that the evidence is legally insufficient (see People v
Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event, that
contention is without merit. The evidence is legally sufficient to
establish that defendant was the perpetrator (see People v McLain, 80
AD3d 992, 996, lv denied 16 NY3d 897). The evidence established that
                                 -2-                          1253
                                                         KA 15-00420

defendant’s two-month-old child sustained broken arms, legs, and ribs
that were in various stages of healing, and a fracture of the skull
that had been recently inflicted. The child’s mother testified that
she observed defendant strike the child in the head three times with a
closed fist the night before the child was treated at the hospital.
The evidence further established that, with the exception of one
evening approximately two weeks prior to the child being treated at
the hospital, defendant and the child’s mother were the only
caretakers of the child. Contrary to defendant’s contention, the
mother’s testimony was not incredible as a matter of law. “Testimony
will be deemed incredible as a matter of law only where it is
‘manifestly untrue, physically impossible, contrary to experience, or
self-contradictory’ ” (People v Smith, 73 AD3d 1469, 1470, lv denied
15 NY3d 778), and that is not the case here. With respect to the
conviction of assault in the first degree, the evidence is legally
sufficient to establish that there was a grave risk of death to the
child as a result of defendant’s conduct and that the child sustained
a serious physical injury (see Penal Law § 120.10 [3]; see generally
People v Borst, 256 AD2d 1168, 1168, lv denied 93 NY2d 871). A
radiologist testified that the child sustained a diffuse axial injury
to the brain, which carried a high risk for coma and death. Viewing
the evidence in light of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we reject defendant’s contention that
the verdict is against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). “[I]ssues 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), and we see no
basis for disturbing the jury’s credibility determinations in this
case.

     Defendant failed to preserve for our review his contention that
the indictment was facially duplicitous (People v Becoats, 17 NY3d
643, 650-651, cert denied ___ US ___, 132 S Ct 1970), or rendered
duplicitous by the trial testimony (see People v Allen, 24 NY3d 441,
449-450), and we decline to exercise our power to address it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). We reject defendant’s contention that County Court erred in
admitting evidence of prior acts of abuse by defendant against the
child’s mother. The testimony of the child’s mother was admissible to
show the mother’s state of mind, i.e., to explain why she did not call
the police sooner when she noticed injuries on the child (see People v
Justice, 99 AD3d 1213, 1215, lv denied 20 NY3d 1012; see also People v
Bradford, 118 AD3d 1254, 1256, lv denied 24 NY3d 1082; People v Long,
96 AD3d 1492, 1493, lv denied 19 NY3d 1027). We conclude that the
probative value of that testimony outweighed any prejudice to
defendant, and that any prejudice to defendant was also minimized by
the court’s limiting instructions (see generally People v Carson, 4
AD3d 805, 806, lv denied 2 NY3d 797).

     We reject defendant’s contention that he was denied effective
assistance of counsel. Inasmuch as we have concluded that the
evidence is legally sufficient, defense counsel’s failure to renew the
                                 -3-                          1253
                                                         KA 15-00420

motion for a trial order of dismissal does not constitute ineffective
assistance (see People v Washington, 60 AD3d 1454, 1455, lv denied 12
NY3d 922). Defense counsel’s failure to move to dismiss count one of
the indictment as rendered duplicitous by the trial testimony also
does not constitute ineffective assistance. “A single error may
qualify as ineffective assistance, but only when the error is
sufficiently egregious and prejudicial as to compromise a defendant’s
right to a fair trial” (People v Caban, 5 NY3d 143, 152). Here, had
defense counsel objected during the trial, “[a]ny uncertainty could
have easily been remedied” through a jury charge (Allen, 24 NY3d at
449), and defense counsel may have chosen to remain silent because
defendant may have “prefer[red] to face one count (and thus one
conviction) rather than several” (Becoats, 17 NY3d at 651).
Defendant’s challenges to defense counsel’s cross-examination of the
medical witnesses and failure to make certain objections during the
prosecutor’s direct examination of the child’s mother constitute mere
disagreements with matters of strategy that do not rise to the level
of ineffective assistance (see People v Ocasio, 81 AD3d 1469, 1469-
1470, lv denied 16 NY3d 898, cert denied ___ US ___, 132 S Ct 318).
To the extent that defendant contends that counsel was ineffective in
failing to call a particular witness, that contention involves matters
outside the record on appeal and must be raised by way of a motion
pursuant to CPL article 440 (see id. at 1470). Defense counsel was
not ineffective for failing to request a circumstantial evidence
charge because such a charge is required only where the evidence
against defendant is wholly circumstantial (see People v Slade, 133
AD3d 1203, 1207, lv denied 26 NY3d 1150), which is not the case here
(see People v Geddes, 49 AD3d 1255, 1256-1257, lv denied 10 NY3d 863).
We conclude, with respect to all of defendant’s claims concerning the
alleged ineffective assistance of counsel, that the evidence, the law,
and the circumstances of this case, viewed in totality and as of the
time of representation, establish that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).

     Defendant’s contention that the grand jury proceeding was
defective because the prosecutor engaged in misconduct by eliciting
false testimony is without merit. “Upon our review of the grand jury
proceeding, we conclude that [t]here is no indication that the People
knowingly or deliberately presented false testimony before the [g]rand
[j]ury, and thus there is no basis for finding that the integrity of
the [g]rand [j]ury proceeding was impaired . . . by the alleged false
testimony” (People v Bean, 66 AD3d 1386, 1386, lv denied 14 NY3d 769
[internal quotation marks omitted]). Defendant’s further contention
that the grand jury proceeding was defective because he appeared
before the grand jury in shackles and jail attire is not preserved for
our review (see People v Griggs, 27 NY3d 602, 605-606, rearg denied 28
NY3d 957), and we decline to exercise our power to review it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Defendant also failed to preserve for our review his contention
that the court increased the sentence because he chose to assert his
right to a trial rather than to accept a plea bargain (see People v
Flinn, 98 AD3d 1262, 1263-1264, affd 22 NY3d 599, rearg denied 23 NY3d
940). In any event, that contention is without merit (see id.).
“ ‘[T]he mere fact that a sentence imposed after trial is greater than
                                 -4-                          1253
                                                         KA 15-00420

that offered in connection with plea negotiations is not proof that
defendant was punished for asserting his right to trial’ ” (People v
Chappelle, 14 AD3d 728, 729, lv denied 5 NY3d 786). Further, the
record does not disclose any vindictiveness on the part of the court
(see People v Jackson, 94 AD3d 1559, 1561, lv denied 19 NY3d 1026).

     The certificate of conviction incorrectly reflects that defendant
was sentenced as a second felony offender, and it must therefore be
amended to reflect that he was sentenced as a second violent felony
offender (see People v Dombrowski, 94 AD3d 1416, 1417, lv denied 19
NY3d 959). We have considered defendant’s remaining contentions and
conclude that they are without merit.




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