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

1073
KA 11-02470
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HENRY SANTIAGO, JR., DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered November 7, 2011. The judgment convicted defendant,
upon a jury verdict, of predatory sexual assault.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of predatory sexual assault (Penal Law § 130.95 [1] [a]),
defendant contends that County Court abused its discretion in denying
his request for substitution of counsel or for an adjournment of the
trial to permit him to retain new counsel. We reject that contention.
Indeed, “defendant failed to proffer specific allegations of a
‘seemingly serious request’ that would require the court to engage in
a minimal inquiry” before denying defendant’s request (People v Porto,
16 NY3d 93, 100). Furthermore, we note that “good cause [for an
adjournment to permit a defendant to retain new counsel] does not
exist [where, as here,] defendant[ is] guilty of delaying tactics or
where, on the eve of trial, disagreements over trial strategy generate
discord” (People v Linares, 2 NY3d 507, 511; see People v Arroyave, 49
NY2d 264, 271; People v Sayavong, 248 AD2d 1023, 1024, lv denied 92
NY2d 905).

     As defendant correctly concedes, he failed to preserve for our
review his contention that the court erred in failing to submit to the
jury the issue of the voluntariness of his statements to the police
(see People v Thomas, 96 AD3d 1670, 1673, lv denied 19 NY3d 1002). In
any event, “[f]or [the issue of] voluntariness to be submitted to the
jury, there must be [both] a proper objection and an offer of evidence
sufficient to raise a factual dispute” (People v Mateo, 2 NY3d 383,
416 n 20, cert denied 542 US 946; see People v Cefaro, 23 NY2d 283,
286-287; People v Haque, 70 AD3d 967, 967, lv denied 15 NY3d 750, cert
                                 -2-                             1073
                                                            KA 11-02470

denied ___ US ___, 131 S Ct 903), and here there was neither.

     Defendant challenges the legal sufficiency of the evidence with
respect to whether the victim sustained a serious physical injury
within the meaning of Penal Law § 130.95 (1) (a) and whether he caused
such injury. The People presented evidence establishing that the
victim sustained a fractured jaw that was wired shut for four weeks,
along with evidence that the victim experienced numbness that
continued until the time of trial and lost three teeth. Consequently,
we conclude that the evidence of serious physical injury is legally
sufficient to support the conviction (see People v Blackman, 90 AD3d
1304, 1307, lv denied 19 NY3d 971; People v Johnson, 50 AD3d 1537,
1537-1538, lv denied 10 NY3d 935; Matter of Tirell R., 33 AD3d 804,
805). Defendant’s further contention that the evidence is legally
insufficient to establish that he caused the victim’s injury is
without merit inasmuch as the victim testified that defendant punched
her in the jaw and that she felt it break. Also, two physicians
testified that the victim’s jaw was broken in two places, and that
such injuries are consistent with a punch as described by the victim.

     Finally, the sentence is not unduly harsh or severe.




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