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

94
KA 15-00332
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PEDRO ROMERO, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered June 27, 2014. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree,
attempted murder in the second degree, assault in the first degree and
criminal possession of a weapon in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the conviction of assault
in the first degree (Penal Law § 120.10 [1]) under count three of the
indictment to assault in the second degree (§ 120.05 [2]), and the
matter is remitted to Onondaga County Court for sentencing on that
crime.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]), attempted murder in the second degree (§§ 110.00, 125.25 [1]),
assault in the first degree (§ 120.10 [1]), and two counts of criminal
possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]).
This case arose from an incident in which three men ambushed two
victims on a residential street in the City of Syracuse. One victim
suffered gunshot wounds to the leg and survived. The other victim
suffered a gunshot wound to the head and died. Eyewitnesses initially
identified Efrain Santos, Maximino Alvarez, and a third suspect as the
assailants, but the third suspect had an alibi. Eyewitnesses later
identified defendant as the third assailant. A grand jury indicted
Santos, Alvarez, and defendant on an acting-in-concert theory, and
Alvarez eventually pleaded guilty and agreed to testify against
defendant.

     We agree with defendant that his conviction of assault in the
first degree as charged in count three of the indictment is based on
legally insufficient evidence because there is insufficient evidence
that the surviving victim suffered serious physical injury (see Penal
                                 -2-                            94
                                                         KA 15-00332

Law § 120.10 [1]), i.e., “physical injury which creates a substantial
risk of death, or which causes death or serious and protracted
disfigurement, protracted impairment of health or protracted loss or
impairment of the function of any bodily organ” (§ 10.00 [10]).
Although the victim displayed to the jury scars on his leg caused by
his gunshot wounds, “the record does not contain any pictures or
descriptions of what the jury saw so as to prove that these scars
constitute serious or protracted disfigurement” (People v Tucker, 91
AD3d 1030, 1032, lv denied 19 NY3d 1002; see generally People v
McKinnon, 15 NY3d 311, 315-316). Furthermore, although the victim
testified that he “feel[s] pain in [his] leg” in cold weather, we
conclude that such testimony does not constitute evidence of
persistent pain so severe as to cause “protracted impairment of
health” (§ 10.00 [10]; see generally People v Stewart, 18 NY3d 831,
832-833). We further conclude, however, that the evidence is legally
sufficient to support a conviction of the lesser included offense of
assault in the second degree (Penal Law § 120.05 [2]), and we
therefore modify the judgment accordingly. Contrary to defendant’s
further contention, 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 conclude that the verdict with respect to those
crimes is not against the weight of the evidence (see generally People
v Bleakley, 69 NY2d 490, 495). “The jury’s resolution of credibility
and identification issues is entitled to great weight” (People v
Houston, 142 AD3d 1397, 1398 [internal quotation marks omitted]), and
we decline to disturb the jury’s determination of those issues.

     Defendant failed to preserve for our review his challenge to the
admission in evidence of a purported threatening letter that Alvarez
received in prison. Defendant did not object to the admission of the
letter on the specific ground he now raises on appeal (see People v
Clark, 90 AD3d 1576, 1577, lv denied 18 NY3d 992), and we decline to
exercise our power to review that contention 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 challenge to County Court’s
preclusion ruling relating to the CPL 710.30 notice (see People v
Robinson, 28 AD3d 1126, 1129, lv denied 7 NY3d 794). In any event, we
conclude that the court’s ruling was proper (see generally People v
Lopez, 84 NY2d 425, 428).

     Contrary to defendant’s further contention, we conclude that the
court properly denied his request for a missing witness charge because
he “failed to meet his initial burden of establishing that [the]
witness would provide testimony favorable to the prosecution” (People
v Butler, 140 AD3d 1610, 1611, lv denied 28 NY3d 969). Finally, the
sentence is not unduly harsh or severe.




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
