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

361
KA 12-00360
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRANDON K. MACIOSZEK, ALSO KNOWN AS BRANDON KARL
MACIOSZEK, ALSO KNOWN AS BRANDON MACIOSZEK,
DEFENDANT-APPELLANT.


KELIANN M. ARGY ELNISKI, ORCHARD PARK, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered February 2, 2012. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of assault in the first degree (Penal Law §
120.10 [1]). The evidence at trial established that defendant
intentionally struck the victim with the motor vehicle he was driving,
causing the victim to fly over the roof of the vehicle and land on the
side of the road. Defendant drove away but was arrested the next day.
At trial, defendant testified that he inadvertently struck the victim,
who had been arguing with defendant’s passenger, and he stipulated
that the victim sustained a serious injury. On appeal, defendant
contends that County Court committed reversible error during voir dire
by making a negative comment about his character. By failing to
object to the comment, however, defendant failed to preserve his
contention for our review (see CPL 470.05 [2]). In any event, we
conclude that the comment was not so prejudicial as to taint the jury
pool or otherwise deprive defendant of a fair trial.

     Defendant similarly failed to preserve for our review his further
contention that the prosecutor engaged in misconduct during summation
(see People v Martin, 114 AD3d 1154, ____; People v Bowman, 113 AD3d
1100, 1100-1101), and his contention lacks merit in any event.
Defendant further contends that the court failed to take proper
measures to remedy juror misconduct, i.e., the jury’s discussion of
the case prior to deliberations. In response to an objection by
defendant, the court instructed the jury, as it had at the outset of
                                 -2-                           361
                                                         KA 12-00360

the trial, not to discuss the case until deliberations commenced, and
defendant did not object to that instruction or request further
relief. Defendant thus failed to preserve for our review his
contention that the court should have more closely “scrutinized” the
jurors who had been discussing the case prematurely (see CPL 470.05
[2]). In any event, we conclude that the court’s response was proper
(see generally People v Mejias, 21 NY3d 73, 79-80, rearg denied 21
NY3d 1058).

     We reject defendant’s contentions that the evidence is legally
insufficient to support the conviction and the verdict is against the
weight of the evidence. As noted, defendant admittedly struck the
victim with the vehicle he was driving, and he stipulated that the
victim sustained serious injuries as a result. The primary issue at
trial was whether defendant intentionally struck the victim or
whether, as defendant testified, he accidently did so. Two
prosecution witnesses testified that they observed the victim running
from defendant’s vehicle and the vehicle swerve into the victim at a
high rate of speed. This occurred after the victim had been arguing
with a passenger in defendant’s vehicle. After striking the victim,
defendant did not stop or immediately contact the police. We conclude
that the above evidence, viewed in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), is legally sufficient
to establish that defendant possessed the requisite intent (see People
v Moreland, 103 AD3d 1275, 1276, lv denied 21 NY3d 945). 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 further conclude that
the verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). Although a different verdict
would not have been unreasonable, it cannot be said that the jurors
failed to give the evidence the weight it should be accorded (see
People v Canfield, 111 AD3d 1396, 1397, lv denied 22 NY3d 1087; People
v Ettleman, 109 AD3d 1126, 1128).

      We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
