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

485
KA 10-02438
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BENJAMIN A. ADDISON, II, 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 (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered May 27, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal mischief in the third
degree and resisting arrest.

     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 criminal mischief in the third degree (Penal
Law § 145.05 [2]) and resisting arrest (§ 205.30). The evidence at
trial established that defendant shoveled substantial amounts of snow
and large chunks of ice onto a neighbor’s vehicle, causing a crack in
the windshield that cost more than $250 to repair. Although defendant
does not dispute on appeal that he engaged in such conduct, he
contends that the evidence is legally insufficient to establish that
he intended to cause damage to the vehicle, which is a necessary
element of criminal mischief in the third degree. We reject that
contention. “A defendant may be presumed to intend the natural and
probable consequences of his actions” (People v Mahoney, 6 AD3d 1104,
1104, lv denied 3 NY3d 660). Here, we conclude that a damaged
windshield is a natural and probable consequence of heaving large
chunks of ice onto a motor vehicle. Viewing the evidence in light of
the elements of the crime of criminal mischief in the third degree as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
further conclude that the verdict with respect to that count is not
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495).

     Defendant failed to preserve for our review his contention that
he was deprived of a fair trial based on improper comments made by the
prosecutor during voir dire that allegedly trivialized the case and
                                 -2-                           485
                                                         KA 10-02438

blamed defendant for exercising his right to a jury trial (see
generally People v Williams, 8 NY3d 854, 855). In any event, County
Court dismissed the prospective jurors in the initial jury panel who
had not already been sworn, thereby alleviating any prejudice to
defendant based on the comments made to those prospective jurors.
Contrary to defendant’s further contention, the court did not err in
failing to discharge sua sponte the three sworn jurors who had been
selected from that initial panel of allegedly tainted prospective
jurors. “[Q]uestions concerning prospective jurors’ knowledge or
attitudes relating to a particular law are irrelevant to their
functions as triers of factual issues and, therefore, have no bearing
on their qualifications as jurors . . . [and where, as here, t]he
prospective jurors were asked by the court whether, given the nature
of the case, they could render a fair and impartial verdict” those who
responded that they were able to do so could properly serve (People v
Corbett, 68 AD2d 772, 778-779, affd 52 NY2d 714).

     Finally, we reject defendant’s contention that the failure of
defense counsel to request that the three sworn jurors in question be
disqualified constituted ineffective assistance of counsel requiring
reversal. Defendant failed “ ‘to demonstrate the absence of strategic
or other legitimate explanations’ for [defense] counsel’s alleged
shortcomings” (People v Benevento, 91 NY2d 708, 712; see People v
Dickeson, 84 AD3d 1743).




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
