People v. Wilkins

• Decision Date: 12 November 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Rondell WILKINS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 451
974 N.Y.S.2d 419
2013 N.Y. Slip Op. 07425

The PEOPLE of the State of New York, Respondent,
v.
Rondell WILKINS, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Nov. 12, 2013.

[974 N.Y.S.2d 420]

Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), for respondent.

ANDRIAS, J.P., ACOSTA, SAXE, RENWICK, MANZANET–DANIELS, JJ.

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered August 31, 2011, convicting defendant, after a jury trial, of assault in the second degree and tampering with physical evidence, and sentencing him, as a second felony offender, to an aggregate term of three years, unanimously affirmed.

Defendant's general motion to dismiss did not preserve his legal sufficiency claims ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), notwithstanding that the court reserved decision on the motion and defendant made a more specific motion, for the first time, at sentencing ( see People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). We decline to review these claims in the interest of justice. As an alternative holding, we reject them on the merits. We also find that the verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). We find no basis for disturbing the jury's credibility determinations.

The element of physical injury was established by an officer's testimony that after defendant threw loose tobacco in his eyes, the officer felt “burning ... like fire in [his] eyes,” his eyes “tear[ed] up,” his vision became “blurry,” and severe pain persisted for about 20 minutes, until alleviated by medical attention. The evidence supported the conclusion that the officer felt “substantial pain” (Penal Law § 10.00[9] ), which means “more than slight or trivial pain” ( People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ).

The elements of tampering with physical evidence (Penal Law § 215.45 [2] ) were established by evidence that defendant discarded small ziploc bags as he fled from police who had observed him engaging in an apparent drug transaction. The evidence supports the conclusion that defendant committed an act of concealment ( see People v. Eaglesgrave, 108 A.D.3d 434, 968 N.Y.S.2d 85 [1st...