People v. Smith

• Decision Date: 30 September 2005
• Docket Number: KA 02-00884.
• Citation: People v. Smith, 21 AD3d 1277, 801 N.Y.S.2d 663, 2005 NY Slip Op 7041 (N.Y. App. Div. 2005)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SHELLY SMITH, JR., Appellant.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 1277

801 N.Y.S.2d 663

2005 NY Slip Op 07041

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SHELLY SMITH, JR., Appellant.

KA 02-00884.

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

September 30, 2005.

Appeal from a judgment of the Wayne County Court (Richard A. Keenan, J.), rendered February 22, 2002. The judgment convicted defendant, upon a jury verdict, of assault in the second degree and resisting arrest.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum:

On appeal from a judgment convicting him, upon a jury verdict, of assault in the second degree (Penal Law § 120.05 [3]) and resisting arrest (§ 205.30), defendant contends that County Court's supplemental jury instruction on physical injury was erroneous, thereby depriving him of a fair trial. We disagree. "The court has discretion to respond as it deems proper to an inquiry by a deliberating jury (see CPL 310.30), provided that the supplemental instruction is a meaningful response to the jury's inquiry" (People v. Williams, 277 AD2d 945, 945 [2000], lv denied 96 NY2d 789 [2001]; see People v. Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]). We conclude that the court's supplemental instruction, viewed together with the court's main charge, adequately conveyed the applicable principles of law to the jury and was a meaningful response to the jury's inquiry (see People v. Durden, 5 AD3d 333 [2004], lv denied 2 NY3d 798, 3 NY3d 658 [2004]; see generally Malloy, 55 NY2d at 301-302). Also contrary to defendant's contentions, the evidence of physical injury is legally sufficient to support the conviction of assault in the second degree (see e.g. People v. Daniels, 199 AD2d 332 [1993], lv denied 83 NY2d 804 [1994]; People v. Piersa, 196 AD2d 896, 897 [1993], lv denied 82 NY2d 901 [1993]), and the verdict on that count is not against the weight of the evidence (see generally People v. Bleakley, 69 NY2d 490, 495 [1987]). Finally, we conclude that the court did not err in sentencing defendant to a term of incarceration greater than that offered as a part of the plea bargain. "Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater . . . , it is . . . to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea" (People v. Pena, 50 NY2d 400, 412 [1980], rearg denied 51 NY2d 770 [1980], cert denied 449 US 1087 [1981]; see People v. Urrutia, 2 AD3d 1475, 1476 [2003], lv denied 2 NY3d 765 [2004]). "[T]here is no indication that the sentence imposed was `the product of vindictiveness'" (Urrutia, 2 AD3d at 1476, quoting People v. Thompson, 299 AD2d 889, 890 [2002], lv denied 99 NY2d 585 [2003]) or that the court "placed undue weight upon defendant's ill-advised decision to reject [a] favorable plea bargain and proceed to trial" (People v. Morton, 288 AD2d 557, 559 [2001], lv denied 97 NY2d 758 [2002], cert denied 537 US 860 [2002]).

Present — Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Pine, JJ.