People v. Hazen, 15251.

• Decision Date: 07 July 2005
• Docket Number: 15251.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL S. HAZEN, Appellant.
• Court: New York Supreme Court — Appellate Division

20 A.D.3d 586

799 N.Y.S.2d 596

2005 NY Slip Op 05815

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL S. HAZEN, Appellant.

15251.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 7, 2005.

Appeal from a judgment of the County Court of Delaware County (Becker, J.), rendered February 3, 2004, upon a verdict convicting defendant of the crime of assault in the second degree.

Lahtinen, J.

In August 2001, while being held in jail on a May 2001 assault in the second degree charge, defendant was involved in an altercation with an inmate that resulted in another assault in the second degree charge. In September 2001, he entered into a plea bargain whereby he pleaded guilty to attempted assault in the second degree as to the May 2001 incident and assault in the second degree for the August 2001 incident, receiving in return concurrent prison terms of 2 to 4 years (May 2001 incident) and seven years (August 2001 incident). Defendant appealed to this Court asserting various grounds to vacate the plea and we reversed and remitted upon the ground that defendant had not been informed about the mandatory period of postrelease supervision (308 AD2d 637 [2003]). Both matters thereafter went to trial, with defendant being acquitted of the August 2001 incident, but found guilty of assault in the second degree as regards the May 2001 incident. County Court sentenced him to seven years in jail and defendant now appeals.

Defendant initially argues that County Court erred in vacating his entire plea after remittal from this Court and that he should have been permitted to keep the aspect of the deal that pertained to the May 2001 incident. His prior appeal was not limited to the August 2001 incident (compare People v Campbell, 10 AD3d 736 [2004]). Moreover, it is apparent that "the plea covered both [accusatory instruments] and was expressly conditioned on the negotiated agreement that the defendant would receive concurrent sentences on the separate counts" and, thus, it was proper to vacate the plea "in its entirety" (People v Clark, 45 NY2d 432, 440 [1978]; see People v Puckett, 270 AD2d 364, 365 [2000]; People v Lucas, 209 AD2d 546, 547 [1994]).

Next, defendant asserts that a juror who expressed concerns about serving after being sworn should have been disqualified by County Court. However, following County Court's questioning of the juror regarding his reason for not wanting to remain on the jury, defense counsel stated that "my position is I want him on the jury." Accordingly, defendant waived challenging the juror's qualification to remain on the jury (see People v Boddie, 240 AD2d 155, 155 [1997], lv denied 90 NY2d 902 [1997]; People v Ellis, 54 AD2d 1052, 1052 [1976]).

We are not persuaded by defendant's argument that the prosecutor's opening statement was legally insufficient because he did not specifically state in his opening that the stabbing was intentional. "In the opening statement, the prosecutor should `set forth the nature of the charge against the accused and state briefly the facts he [or she] expects to prove, along with the evidence he [or she] plans to introduce in support of the same'" (People v Brown, 104 AD2d 696, 696 [1984], lv denied 64 NY2d 778 [1985], quoting People v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451 US 911 [1981]). The prosecutor complied with this standard by, among other things, his assertion in his opening statement that the proof would reveal that defendant and the victim had been together talking when defendant produced a knife and stabbed the victim twice. Even if this had not been sufficient, any error was rectified when, after the prosecutor completed his opening and defendant voiced his objection, County Court permitted the prosecutor to briefly supplement his statement and the prosecutor then explicitly addressed the...